[Congressional Record Volume 162, Number 83 (Wednesday, May 25, 2016)]
[Senate]
[Pages S3167-S3168]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, nearly 150 years ago, Congress determined
that a fully functioning Supreme Court should consist of nine Justices.
For more than 100 days, however, the Supreme Court has been unable to
operate at full strength as a result of unprecedented obstruction by
Senate Republicans. Under Republican leadership, the Senate is on track
to be in session for the fewest days since 1956. Senate Republicans
simply refuse to do their jobs. If Senate Republican leadership has its
way, this seat on the Supreme Court will remain unnecessarily vacant
for more than a year.
President Obama nominated Chief Judge Merrick Garland 70 days ago.
Based on the timing of the Senate's consideration of Supreme Court
nominees over the past four decades, Chief Judge Garland should be
receiving a confirmation vote on the Senate floor today. Instead,
Republican Senators are discussing a hypothetical list of nominees
issued by their presumptive nominee for President.
Senate Republicans should be responsible enough to address the real
vacancy on the Supreme Court that is right now keeping the Court from
operating at full strength. Chief Judge Garland has received bipartisan
support in the past, and there is no reason other than partisan
politics to deny him the same process the Senate has provided Supreme
Court nominees for the last 100 years. The chairman of the Judiciary
Committee recently suggested we put down on paper how the Senate treats
Supreme Court nominees. I did just that with Senator Hatch in 2001 when
we memorialized the longstanding Judiciary Committee practice that
Supreme Court nominees receive a hearing and a vote, even in instances
when a majority of the Judiciary Committee did not support the nominee.
The chairman and all Republicans should go back to that letter to use
as roadmap for considering Chief Judge Garland's nomination now.
Republicans have been dismissive about the need for a fully
functioning Supreme Court with nine Justices, but as we have already
seen this term, the Supreme Court has been repeatedly unable to serve
its highest function under our Constitution. Without a full bench of
justices, the Court has deadlocked and has been unable to address
circuit court conflicts or resolve cases on the merits. The effect, as
the New York Times reported recently, is a ``diminished'' Supreme
Court. In a bid to appeal to moneyed interest groups, Republicans have
weakened our highest Court in the land, both functionally and
symbolically.
In the face of this obstruction, some Supreme Court justices have
tried to put on a brave face, proclaiming things are going along just
fine. The facts show, however, that the opposite is true. As another
recent news article notes, the Supreme Court is on pace to take on the
lightest caseload in at least 70 years. At least one Supreme Court
expert has suggested that the eight Justices currently serving may be
reluctant to take on certain cases when they cannot be certain they
will reach an actual decision on the merits without deadlocking. As
each week passes and we see the Court take a pass on taking additional
cases, the problem gets worse and the Court is further diminished.
In some instances, the Court has issued rare and unprecedented
follow-up orders to try to reach some kind of compromise where they
otherwise cannot resolve the issue with eight Justices. This happened
in Zubik v. Burwell, which involved religiously affiliated employers'
objections to their employees' health insurance coverage for
contraception. In that case, the Court took the unusual step of
ordering supplemental briefing in the case, seemingly to avoid a 4-4
split and to reach some kind of compromise. Even with the extra
briefing, the Court could not make a decision. Instead, it sent the
issue back to the lower courts expressing ``no view on the merits of
the cases.'' The reason we have one Supreme Court is so it can issue
final decisions on the merits after the lower courts have been unable
to do so in a consistent fashion. But the Supreme Court has recently
punted cases back down to the lower courts for them to resolve the
issue, possibly in different ways, because of its diminished stature. A
Supreme Court that cannot resolve disputes among the appellate courts
cannot live up to its name.
The Court has been unable to resolve cases where even the most
fundamental right is at stake, that of life and death. Former Judge
Timothy K. Lewis of the Third Circuit Court of Appeals warned us of
this earlier this month when he spoke at a public meeting to discuss
the qualifications of Chief Judge Garland. Sadly, these warnings have
become a reality. In one death row case, the Supreme Court has not yet
decided whether to review it despite the fact that, at trial, an expert
testified that the defendant was more likely to be dangerous in the
future because of his race. The prosecution later conceded this
testimony was inappropriate, but continued to raise procedural defenses
in Buck's case. Such a case about whether a person sentenced to death
has received due process is at the very heart of our democracy; yet our
diminished Supreme Court has been unable to make a decision in this
case and could deadlock on others.
There are some who suggest a deadlocked decision may be beneficial
when
[[Page S3168]]
one supports the lower court's ruling, but that is both shortsighted
and contrary to role of the courts in our constitutional system. A
deadlocked decision postpones an actual decision from the final arbiter
of law under our Constitution. This results in less certainty for all
of us.
I hope that Republicans will soon reverse course and put aside their
obstruction to move forward on Chief Judge Garland's nomination to be
the next Supreme Court Justice. Their failure to act is having a real
impact on the American people. It is up to the Republican majority to
allow this body to fulfill one of its most solemn duties and ensure
that justice is not delayed for another year. Judge Garland deserves
fairness. He should be given a public hearing and a vote without
further delay.
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