[Congressional Record Volume 162, Number 139 (Wednesday, September 14, 2016)]
[Senate]
[Pages S5693-S5694]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF MERRICK GARLAND

  Mr. UDALL. Mr. President, this week marks a sad milestone for the 
U.S. Senate, a milestone of inaction, obstruction, and failure. This 
week marks 6 months since President Obama nominated Judge Merrick 
Garland to the Supreme Court. President Obama did his job and his 
constitutional duty, and Judge Garland should have been confirmed by 
now. He is eminently qualified. He is a dedicated public servant and a 
respected judge. Instead, Judge Garland hasn't received a 
hearing. Today marks 182 days since his nomination, and not even a 
hearing. In the last 40 years, the average time from nomination to 
confirmation has been 67 days for a Supreme Court nominee no matter 
which party has controlled the White House and the Senate. We have 
always done our job. We have always given a President's nominees a 
hearing and a vote as the Constitution requires.

  After my remarks, I will formally introduce a proposal to change the 
Senate rules to require that any judicial nominee who has been pending 
for more than 180 days receive a vote. I do not take this decision 
lightly, but I fear that a line has been crossed. This level of 
obstruction will only get worse in the years to come. We should not 
ever be in this situation again. I urge all of my colleagues to 
consider this proposal fairly and without partisan interests.
  I had hoped that the Senate would act on Judge Garland's nomination. 
I met with him in May. It was a good meeting. We talked about some 
areas of the law of particular importance to New Mexicans, including 
campaign finance reform, tribal law, interstate water issues, and other 
topics. He is well-versed and well-informed, but he is not prejudging 
any issue. I really enjoyed the opportunity to get to know him better. 
He is an exceptional jurist who has dedicated his life to public 
service. He is a nominee who deserves our respect and a hearing and a 
vote.
  But for several months now, Republicans have argued that President 
Obama's nominee shouldn't get a vote, that this President shouldn't get 
the same 4-year term as every other President. They argue that it is 
better for the Supreme Court to have a vacancy for what is likely to be 
more than a year. This makes no sense. It is hurting the Court and the 
American people. It leaves a highly qualified nominee in limbo.
  Judge Garland has more Federal judicial experience than any other 
Supreme Court nominee in history. With many judges, that would be a 
problem--too many controversial opinions or decisions overturned--but 
Judge Garland's record is exceptional. He has spent nearly 20 years on 
the DC Circuit, the court often referred to as the second most powerful 
in the country. He has participated in over 2,600 merit cases and 327 
opinions. He has heard many controversial cases. Yet the Supreme Court 
has never reversed one of his written opinions. Judge Garland's record 
demonstrates an incredible ability to build consensus on a wide range 
of difficult subjects, and his opinions show that he decides cases 
based on the law and the facts. These are traits which will serve him 
well as a Supreme Court Justice and, more importantly, which will serve 
all plaintiffs and defendants who come before him.
  Judge Garland's legal career before joining the bench is equally 
impressive. He was a Federal prosecutor and later served as a high-
ranking Justice Department attorney. At Justice, he oversaw major 
investigations and prosecutions. He led the prosecution of the two 
Oklahoma City bombers and supervised the prosecution of the Unabomber. 
He was known for working closely with victims.
  But he is more than just an exceptional judge and lawyer; he is a 
person of high moral character. For the last 18 years, he has tutored 
students at a local elementary school. He speaks to law students about 
public service careers. He also regularly speaks about the importance 
of pro bono services and access to the courts.
  Judge Garland is a good American, and he is being treated unfairly. 
Many Republican Senators are so caught up in the politics that they 
have even refused to meet him. He is being denied a hearing in the 
Judiciary Committee, and the majority leader refuses to allow him to 
receive an up-or-down vote. This is unprecedented obstruction against 
one of the most qualified Supreme Court nominees in history.
  My Republican colleagues will say it is not about Judge Garland. They 
say President Obama--who still had over 10 months in office at the time 
he made the nomination--had no right to fill the vacancy. They argue 
that it is the next President's job. But we are talking about a vacancy 
that will have been open for almost a year before the next President 
takes office. This defies common sense and defies historical precedent.
  Sadly, obstruction in the Senate is the new normal. Judge Garland is 
just the most glaring example. A Supreme Court vacancy gets a lot of 
attention, but our lower courts have been understaffed for years. Right 
now there are 12 vacancies on the appellate courts, our district courts 
have 75 vacancies, and 33 of those are considered judicial emergencies 
because the court is so shortstaffed.
  There are many nominees we could vote on today. Twenty-eight judicial 
nominees are on the Executive Calendar, voted out of committee with 
bipartisan support, but Republicans have slowed the confirmation 
process to a standstill.
  Last year Senate Republicans confirmed the fewest judicial nominees 
in more than 50 years--11 for the entire year--matching the alltime 
record. Only 18 have been confirmed this Congress. Let's compare that 
to the last 2 years of the Bush administration. With a Democratic 
majority, the Senate confirmed 68 judges.
  All this gets back to something I have discussed since joining the 
Senate: the need to end the dysfunction so the Senate can work for the 
American people again. I pushed for reform of the Senate rules in the 
last three Congresses. We did change the rules to allow majority votes 
for executive nominees and judicial nominees to lower courts. That was 
a historic and much needed change. Without it, the judicial system 
would be even more overburdened. But even that change does no good if 
the judges remain blocked.
  The majority leader is using the power over the calendar as a stealth 
filibuster, and that is what is happening in this Congress. The line 
gets longer and longer of perfectly qualified nominees denied a vote, 
denied even to be heard. Now a seat on the Supreme Court is empty and 
the majority leader is actually arguing that it should stay empty for 
over a year in the hopes that maybe a President Trump will be able to 
fill all of these vacancies that came up during President Obama's term. 
This isn't governing; this is an unprecedented power play.
  Is it any wonder that the American people are frustrated and fed up 
with political games, with obstruction in the Senate, with special 
deals for insiders and campaigns that are being sold to the highest 
bidder? They see this obstruction as just another example of how our 
democracy is being eroded.
  I believe it is so bad that we need a change in the Senate rules to 
address our broken judicial confirmation process. My suggestion is very 
simple: If the Judiciary Committee hasn't held a vote on a nominee 
within 180 days from the nomination, then he or she is discharged and 
becomes the pending business of the Senate and gets a cloture

[[Page S5694]]

vote. It would be the same for nominees voted out of committee but 
blocked by the majority leader's inaction. After 180 days, they get 
their vote.
  Let me be clear. If this rule is adopted, 180 days should not become 
the normal time period to confirm nominees. That is the longest it will 
take, but there is no reason the Senate shouldn't act quicker, as it 
has done throughout history.
  We need to end the stealth filibuster of this President's nominees. 
No more burying nominees in committee. No more leaving them to languish 
on the Executive Calendar. The Senate will have to do its job.
  Under my rules reform, Judge Garland would have his vote this week, 
Senators would do our jobs, and the voters would know where we stand. 
Many other nominees would finally get their votes. There are currently 
seven appellate court nominees who have been waiting more than 180 
days. There are 30 district court nominees, including 5 judicial 
emergency districts.
  Some critics may argue that the tables will be turned and Democrats 
will object to a Republican nominee. Well, if a nominee is truly 
objectionable, then any Senator, Democratic or Republican, should 
convince the majority of the Senate to vote against confirmation. That 
is how democracy works.
  It is time to get our courts fully staffed so our judicial system can 
do its work. We have already seen the impact of a Supreme Court with 
eight members--cases sent back to the lower courts without decisions. 
The Supreme Court isn't taking cases that are likely to deadlock. These 
are some of the most important cases for them to decide. When we fail 
to do our job, the justice system suffers and the public suffers. The 
old saying is so true: Justice delayed is justice denied.
  It is time for Senate Republicans to do their job. The Constitution 
gives the President the responsibility to nominate Justices on the 
Supreme Court, and the Senate's job is to consider those nominees. The 
Constitution doesn't say: Do your job except in an election year.
  The President has done his job by nominating Judge Garland. Many 
Republicans expected him to select a highly controversial nominee--
someone to energize the liberal base in an election year--but the 
President took his responsibility seriously. He selected a widely 
respected nominee with impeccable credentials, a man who should be 
easily confirmed. It is time for us to take our responsibility 
seriously, give Judge Garland the hearing he deserves, and allow the 
Senate to take an up-or-down vote.
  Thank you, Mr. President.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________