[Congressional Record Volume 162, Number 78 (Tuesday, May 17, 2016)]
[Senate]
[Pages S2870-S2872]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, today is the 62nd anniversary of the
Supreme Court's landmark decision in Brown v. Board of Education, which
reaffirmed our Nation's commitment to justice and equality by ending
racial segregation in our public schools. The unanimous Court overruled
one of its worst precedents in Plessy v. Ferguson and held that ``in
the field of public education, the doctrine of `separate but equal' has
no place. Separate educational facilities are inherently unequal.''
For generations, the Brown v. Board decision has been viewed as a
turning point in the effort to eradicate the shameful legacy of Jim
Crow and racial segregation. On this anniversary, we are reminded of
the significance of a strong and independent Supreme Court, as set
forth in our Constitution. Americans respect the Court as our guardian
of the Constitution and the rule of law. Each generation of Americans
since the Nation's founding has worked to bend the arc of the moral
universe further toward justice, seeking to fulfill the Constitution's
stated purpose of forming ``a more perfect Union.'' In Brown v. Board,
the Court's unanimous decision reflected that we are a nation of laws
and that equal justice under law has meaning.
Unfortunately, while we commemorate this momentous Supreme Court
decision today, we find the Supreme Court today weakened by Senate
Republicans' current obstruction. It is an undisputable fact that the
Republicans' refusal to consider Chief Judge Merrick Garland's
nomination means that the Supreme Court will be without a full nine
justices for more than one of its terms. The Republican argument
articulated in February that they should delay all consideration
because it is an election year has no precedent and is unprincipled. It
shows contempt for the Court as an institution and as an independent
and coequal branch of government.
The result of Republicans' sustained obstruction is that the Court is
taking on fewer cases, and even in the cases it does hear, it has
repeatedly been unable to definitively resolve the issue before it. A
May 1 article by Robert Barnes in the Washington Post notes that the
number of cases that the Justices have accepted has fallen, and the
experts in that article attribute this to the Court being down one
member. As one expert noted in the article, ``there seem to be a number
of `defensive denials,' meaning neither side of the ideologically split
court wants to take some cases because of uncertainty about how it will
turn out, or whether the court will be able to reach a decision.''
Another harmful effect of this Republican obstruction is that the
Court has been contorting itself to avoid 4-4 splits by leaving the key
questions of cases undecided. Just yesterday, in two different cases,
the Court was unable to make a final decision on the merits. In both
cases, the appellate courts are split on the law, and the Supreme Court
was unable to live up to its name. One of the cases, Zubik v. Burwell,
involved religiously affiliated employers' objections to their
employees' health insurance coverage for contraception. The Court had
already taken the unusual step of ordering supplemental briefing in the
case, seemingly to avoid a 4-4 split. Even with the extra briefing, the
Court was still unable to make a decision. Instead, it sent the issue
back to the lower courts expressing ``no view on the merits of the
cases.'' In the second case, Spokeo v. Robbins, the question at issue
was Congress's ability to statutorily create rights that confer
standing for plaintiffs to sue when those rights are violated. The case
involves important privacy questions about Americans' power to take
action when incorrect information is posted about them online. The
Court, however, failed to reach the key question at issue. The effect
is that the current split among the Circuit Courts of Appeals remains
unresolved. As yesterday's New York Times editorial
[[Page S2871]]
notes, ``Every day that passes without a ninth justice undermines the
Supreme Court's ability to function, and leaves millions of Americans
waiting for justice or clarity as major legal questions are
unresolved.''
In addition to these contortions, the Court has deadlocked in at
least three instances on significant legal issues before it. These 4-4
splits have real, practical consequences. As a recent Economist article
noted, ``By letting lower-court decisions stand but not requiring other
courts to abide by the ruling, the stage is set for odd state-by-state
or district-by-district distinctions when it comes to the meaning of
laws or the constitution.'' I ask unanimous consent that all three
articles be printed in the Record at the conclusion of my remarks.
Republicans' refusal to do their jobs and consider Chief Judge
Garland's nomination diminishes the role of the Supreme Court. In
nominating Chief Judge Garland to the Supreme Court, President Obama
has picked an eminently qualified judge who has more Federal judicial
experience than any other Supreme Court nominee in history. This is an
individual who has received praise across the political spectrum. But
instead of delving into his lengthy public service record for
themselves, Republicans have decided to outsource their jobs to outside
interest groups who have spent millions of dollars to smear Chief Judge
Garland. And worse, they continue to refuse to allow Chief Judge
Garland a chance to respond at a public hearing.
As long as they stick to this unprincipled position, Republicans will
continue to undermine the Court's ability to serve its role under our
Constitution as the final arbiter of our Nation's laws. Republicans
should reverse course and treat the Court as the independent and
coequal branch of government that it is.
So today, let us not only celebrate the Court's historic decision in
Brown, but also resolve to return this venerated institution to full
strength. It begins with giving Chief Judge Garland a fair public
hearing and a vote.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, May 1, 2016]
Scalia's Death Affecting Next Term, Too? Pace of Accepted Cases at
Supreme Court Slows
(By Robert Barnes)
The ways in which Justice Antonin Scalia's sudden death are
altering the current Supreme Court term have been widely
chronicled.
But it appears the absence of Scalia will be felt on the
court's work next term, as well.
The number of cases the justices have accepted has fallen,
meaning that a docket that in recent years has been smaller
than what is traditional is shrinking still.
The court has accepted only six cases since Scalia died
Feb. 13. The number is low compared with the average,
Scotusblog.com editor Amy Howe said at an event last week
reviewing the Supreme Court's work.
And none of the cases that the court has accepted for the
term that begins in October approach the level of controversy
that have marked the dramatic rulings of recent years.
A panel of court experts assembled by the Constitutional
Accountability Center last week offered a number of reasons
for the reduced workload.
But they boiled down to a reluctance of the ideologically
divided eight-member court to take on an issue in which it
might not be able to provide a clear answer.
First, a reminder of the enormous leeway the justices have
in setting their agenda.
An outraged citizen's vow to fight an injustice ``all the
way to the Supreme Court'' comes to pass only if the Supreme
Court consents.
With a few exceptions of cases the court is mandated to
consider, justices are unencumbered as they cull through the
thousands of petitions seeking review. In recent years, only
about 70 or so cases receive writs of certiorari--``cert
grants''--signaling that the justices will review the
decision of the lower court.
It takes the approval of four justices to schedule a case
for full briefing and oral argument. The court makes those
decisions all year--it could announce on Monday that it has
accepted more cases--but generally those granted after
January are placed on the court's docket for the term that
begins the following October.
So there is plenty of time for the court to pick up the
pace. But based on what's in the pipeline, Howe suggested
that there could be plenty of lulls in the court's schedule.
If Senate Republicans hold true to their pledge not to hold
hearings or a vote on President Obama's nomination of U.S.
Circuit Judge Merrick Garland to fill Scalia's seat before
the election, the court will enter the next term one justice
down. And if a lame-duck Senate after the election does not
consider him, it would be sometime in the spring, at the
earliest, before the court is back to full strength.
John P. Elwood, a Washington lawyer and Supreme Court
specialist, said ``having an extra member matters.''
He watches the Supreme Court's docket as closely as anyone,
writing a column for Scotusblog about the cases the court
considers at its private conferences and which seem likely to
be granted.
He said there seem to be a number of ``defensive denials,''
meaning neither side of the ideologically split court wants
to take some cases because of uncertainty about how it will
turn out, or whether the court will be able to reach a
decision.
``The court already is a defensive enough institution,''
Elwood said. He said that Justices Clarence Thomas and
Stephen G. Breyer have noted that the court is cautious about
granting cert in the best of times.
They ``have said essentially, `You can't screw up by not
taking a case, you can only screw up by taking a case,' ''
Elwood said. ``And now there's one more reason not to take a
case: that the court may blow up and not be able to decide
the thing.''
Sherrilyn Ifill, president and director-counsel of the
NAACP Legal Defense and Educational Fund, said the apparent
slowdown is another consequence of waiting to fill Scalia's
seat.
It is a rebuttal to ``all of these sanguine statements that
we can have eight justices and it just doesn't matter, we'll
just kick the can down the road,'' she said.
Ifill often disagrees with the decisions of the
conservative court but said that everyone agrees ``this is a
branch of government that actually gets the job done.'' She
added: ``I think the court is trying to be prudent and not be
a participant in its own demise by not taking these cases it
can't decide.''
Brianne J. Gorod, the Constitutional Accountability
Center's chief counsel, said justices ``know that if the
issue is an important one it will probably come back in a
year or two, when hopefully there will be a ninth justice.''
Andrew J. Pincus, another Washington lawyer who practices
before the court, agreed with this analysis but said it is
the wrong approach for the court to take.
``This sounds a little self-interested,'' Pincus began, but
he said the court has a ``wrongheaded view'' about the
frequency with which issues appear before it, and a
``complete misperception of the real world impact of lower-
court decisions that are out there for a long time that
people in the real world have to comply with.''
But if it is easy to detect a slowdown in the court's
grants, it is more difficult to identify which cases the
court might have taken if at full strength.
The court makes those decisions in secret. No vote total is
announced and rarely is an explanation given.
So there can only be speculation about which cases are
skipped because the court is divided, or which the justices
agreed the lower court got it right and there is no work for
them to do.
____
[From the New York Times, May 16, 2016]
The Crippled Supreme Court
Every day that passes without a ninth justice undermines
the Supreme Court's ability to function, and leaves millions
of Americans waiting for justice or clarity as major legal
questions are unresolved.
On Monday, the eight-member court avoided issuing a ruling
on one of this term's biggest cases, Zubik v. Burwell, which
challenges the Affordable Care Act's requirement that
employers' health care plans cover the cost of birth control
for their employees. In an unsigned opinion, the court sent
the lawsuits back to the lower federal courts, with
instructions to try to craft a compromise that would be
acceptable to everyone.
This is the second time since Justice Antonin Scalia's
death in February that the court has failed to reach a
decision in a high-profile case; in March, the court split 4
to 4 in a labor case involving the longstanding right of
public-sector unions, which represent millions of American
workers, to charge collective bargaining fees to nonmembers.
The Zubik litigation, which involves seven separate cases,
was brought by religiously affiliated nonprofit employers
like hospitals, colleges and social service organizations
that do not want any role in giving their employees access to
contraception.
The Obama administration, mindful of concerns over
religious freedom, has already provided a way out for these
employers: They must notify their insurer or the government,
in writing, of their objection, at which point the government
takes over and provides coverage for the contraceptives at no
cost to the employers.
This sensible arrangement was not enough for several
plaintiffs who said it still violated their religious freedom
under a federal law, because the act of notification itself
made them complicit in the provision of birth control.
Eight federal courts of appeals have already rejected this
claim, finding that such a minor requirement did not place a
substantial burden on the objectors' religious freedom. In
her opinion for the Court of Appeals for the District of
Columbia Circuit, Judge Cornelia Pillard wrote that under
both federal law and the Constitution, ``freedom of religious
exercise is protected but not absolute.'' This was the right
answer, and should
[[Page S2872]]
have easily guided the justices in resolving this case.
But in a highly unusual order issued days after oral
arguments, the justices asked both sides to consider a
potential compromise--having a religiously affiliated
employer tell an insurer of its objection to birth control
coverage, and then having the insurer separately notify
employees that it will provide cost-free contraceptives,
without any involvement by the employer.
In Monday's opinion, the court said both sides' responses
indicated that a compromise was possible. Without weighing in
on the merits of the litigation, the court sent the lawsuits
back to the federal appeals courts and told them to give the
parties ``an opportunity to arrive at an approach going
forward that accommodates petitioners' religious exercise
while at the same time ensuring that women covered by
petitioners' health plans receive full and equal health
coverage, including contraceptive coverage.'' '
This move solves nothing. Even if these plaintiffs can find
their way to an agreement with the government that satisfies
their religious objections, there are other employers with
different religious beliefs who will not be satisfied, and
more lawsuits are sure to follow.
The court could have avoided this by affirming the
appellate decisions that correctly ruled in the government's
favor. Unfortunately, the justices appear to be evenly split
on this issue, as they may be on other significant cases
pending before them.
The court's job is not to propose complicated compromises
for individual litigants; it is to provide the final word in
interpreting the Constitution and the nation's laws. Despite
what Senate Republicans may say about the lack of harm in the
delay in filling the vacancy, the court cannot do its job
without a full bench.
____
[From the Economist, May 9, 2016]
Why the Supreme Court Is Slowing Down
With five votes, the late Justice William Brennan liked to
tell his clerks, ``you can do anything around here''. Justice
Brennan's rule still applies after the death in February of
Antonin Scalia. But with only eight justices remaining, the
magic number of five is now harder to come by. Twice since
Mr. Scalia's death the Supreme Court has performed the
judicial equivalent of throwing up its hands. In a small case
concerning banking rules and in a hugely consequential case
challenging the future of public-sector unions, the justices
issued one-sentence per curiam (``by the court'') rulings:
``The judgment is affirmed by an equally divided court.'' A
tie in the high court means that the ruling in the court
below stands. But a tie-induced affirmance does not bind
other lower courts, and the judgment has no value as a
precedent. A tie, in short, leaves everything as it was and
as it would have been had the justices never agreed to hear
the case in the first place.
That's a lot of wasted ink, paper, time and breath. And now
it seems the justices may be keen to reduce future futile
efforts as they contemplate a year or more with a missing
colleague. As Robert Barnes wrote in the Washington Post last
week, the Supreme Court's pace of ``grants''--cases it agrees
to take up--has slowed. Only 12 cases are now on the docket
for the October 2016 term that begins in the fall, and grants
are lagging below the average of recent years. The slow pace
is especially notable because it marks a slowdown from an
already highly attenuated docket. Seventy years ago, the
justices decided 200 or more cases a year; that number
declined to about 150 in the 1980s and then plummeted into
the 80s and, in recent years, the 70s. The justices will
grant more cases in dribs and drabs following their private
conferences in May and June and after the so-called ``long-
conference'' in September (followed by more conferences
throughout the autumn and winter), but early indications are
that the term starting in October may be one of the most
relaxed in recent memory.
The Obama administration continues to push Senate
Republicans to change their minds and hold confirmation
hearings for Merrick Garland, chief judge of the District of
Columbia circuit court. While a number of GOP senators have
agreed to meet Mr. Garland for lunch or tea, none have
endorsed him or said he should have a hearing. The fight to
fill Mr. Scalia's seat before the next president takes office
includes a new hashtag (#WeNeedNine) and a counter showing
the number of ``days of obstruction'' in the Senate since Mr.
Obama tapped Mr. Garland for the job. (That number is 51 and
counting.) But the Republican leadership isn't budging.
Charles Grassley, chair of the judiciary committee, admits
that leaving the appointment to the next president is a
``gamble'' given that Donald Trump is now all-but certain to
be the Republican nominee, but he is sticking to his guns.
What's wrong with eight justices? The primary worry is that
tie votes will sow legal confusion and uncertainty. When
justices are split down the middle, they cannot resolve rival
views on crucial national issues--from affirmative action and
public unions to gay rights, birth control and abortion. By
letting lower-court decisions stand but not requiring other
courts to abide by the ruling, the stage is set for odd
state-by-state or district-by-district distinctions when it
comes to the meaning of laws or the constitution. This seems
to be the worry that prompted the justices to search for a
compromise after hearing arguments in March in the latest
fight over Obamacare and contraception. One federal district
court has said that the contraceptive mandate violates a 1993
law banning the government from unduly interfering with other
people's religious scruples. A half dozen other appellate
courts have come to the opposite opinion. So if the justices
divide 4-4 in Zubik v Burwell, women across most of America
will have access to birth control through their employer's
health coverage, while women in seven midwestern states will
not. The justices' unprecedented effort to square the circle
by playing mediator does not look promising.
Some legal scholars argue that an eight-justice bench isn't
so bad after all and might actually be preferable. Eric
Segall, a professor of law at Georgia State University,
thinks the 4-4 ideological divide is pushing justices to
moderate their claims in an effort to win votes from their
colleagues on the other side. ``[T]o accomplish their
goals'', Mr. Segall writes, ``the Justices would simply have
to get along better''. This is a prescription, he says, to
``more public confidence in the final outcomes'' of Supreme
Court decisions. We may have seen just such a compromise at
work in a recent voting-rights decision, Evenwel v Abbott.
After the oral argument in December, most pundits (including
your correspondent) were expecting a 5-4 decision upending
the common understanding of ``one person, one vote''
(counting everybody) in favour of counting only eligible
voters, a scheme favouring whiter, wealthier, GOP-leaning
districts. But the justices came out 8-0 in the other
direction. The four liberals seem to have attracted the
conservatives' votes (though Justices Samuel Alito and
Clarence Thomas disagreed with the reasoning) by lowering the
temperature a bit: the constitution permits states to use
total population as the basis for drawing districts, Justice
Ruth Bader Ginsburg wrote for her colleagues, but the
question of whether it requires them to do so is off the
table until a case forces it back on.
But beyond the Evenwel surprise and the seemingly ill-fated
attempt to resolve the dicey dilemma in Zubik, it's very hard
to see how a denuded court is an appealing concept in the
medium or long-term. A patchwork quilt of legal realities may
have been fitting for America under the Articles of
Confederation, before the country had a political system that
made it something approximating a union, but America's
constitutional design is not consonant with deep confusion
about what the law means on controversial questions of public
life. While the bind they're in may lead to occasional
compromises, the justices will only bend so far. Whether the
divide manifests as 4-4 splits or a tendency to hear fewer
cases in which those splits seem likely, a curbed Supreme
Court is not a court that can possibly live up to its name.
____________________