[Congressional Record (Bound Edition), Volume 162 (2016), Part 3]
[Senate]
[Pages 4291-4292]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     NOMINATION OF MERRICK GARLAND

  Mr. KING. Mr. President, I also want to address a second issue while 
I have the floor, and that is a conversation I had yesterday with Judge 
Merrick Garland. We had an opportunity to talk in my office for about 
45 minutes to an hour. We talked about a wide range of topics: the 
limits on the President's Executive authority, how the Court should 
provide oversight to regulatory agencies, the Second Amendment, the 
role of stare decisis respect for precedence, general judicial 
philosophy. We talked about a number of issues, and I wanted to share 
with the Senate some observations from that meeting.
  No. 1, the first thing I thought of last night after reflecting upon 
this conversation is that I used to be in the judge-appointing 
business. As Governor of Maine, I probably appointed 10 or 15 judges 
over my 8-year term, maybe more. I don't have a specific number, but I 
do recall the process which brought prospective judges in by a judicial 
selection committee, and then I would consider their qualifications and 
interview them in much the same way I did yesterday.
  I always look for the same qualities: first, high intellect; 
knowledge of the law; nonpomposity--as a young lawyer, I didn't like 
pompous judges, and I don't like people who uphold themselves, 
particularly when they are in positions of authority, so a kind of 
modest demeanor; finally, a temperament whereby they can apply the law 
and make decisions without any discernible political or ideological 
bent. Indeed, as I thought back on the conversation I had with Judge 
Garland yesterday, I realized that he exactly fit that criteria. Were 
he an applicant or a candidate for the supreme court in the State of 
Maine and if I were the Governor, he would be the kind of guy I was 
looking for.
  The other thing I reflected on as I was thinking about the 
conversation is that I wish the people of America had been looking over 
my shoulder and had heard the conversation, the questions, heard his 
answers, studied his body language and how he approached these 
questions, how his mind works, how he thinks.
  I thought about the fact that many of us are having these meetings 
with the judge over these weeks, Members from both parties, and what we 
are doing is kind of a slow-motion hearing without the public being 
able to watch what is going on. I think that is where we are missing 
the boat on this nomination.
  I fully understand the discretion every Senator has to make their own 
decision on whether this is a nomination that should go forward, but we 
are denying the American people the opportunity to participate in this 
process by not having a hearing and allowing them to see and hear and 
meet Judge Garland. I don't understand that.
  Well, I guess I do understand the politics, and I will talk about 
that in a minute, but I don't understand why we are shutting the people 
out of this process, because if there was a hearing, it would probably 
go on for hours, there would be dozens of questions, the Senators could 
ask all the questions

[[Page 4292]]

they wanted, and the public and the Senators would be able to observe 
this man and get a feel for who he is, what he would bring to this job, 
and the kind of person he is.
  I have not made a final decision. If and when he is brought to the 
floor for a vote, I haven't yet decided how I will vote, although based 
upon my meeting yesterday and my knowledge of his prior judicial 
experience and his reputation, I am inclined to say yes. But I want to 
have a hearing. I want to see how he does in that hot seat where he is 
asked difficult questions by our colleagues. I want to see the reaction 
not only of the Senators but of the people of America as they have a 
chance to meet Judge Garland.
  One of the things that concerns me about this process--and ironically 
Chief Justice Roberts commented on this just a few months ago, before 
the death of Justice Scalia--is the politicization of the Supreme 
Court. I am not naive, and I realize the Supreme Court makes important 
fundamental decisions. It is an important part of our governmental 
structure and makes far-reaching decisions that have effects on many 
people across the country. But I am afraid that today we have gotten to 
the point where the Supreme Court is treated as almost like a third 
branch of Congress. It is another political body. Instead of being 
elected by the people, it is being elected by the Senators, and we are 
arguing about who gets to elect this so-called swing vote and which way 
the Court is going to be.
  The Supreme Court should not be a political body, period. It should 
be a body made up of people--my impression of Judge Garland--who are 
servants of the law, who are students of the law, who are moderate and 
temperate.
  I walked out of our meeting and I thought, this guy is a conservative 
with a small ``c.'' He is a modest man with a deep knowledge of the law 
and a razor-sharp intellect but no political or ideological agenda that 
I could discern. I suspect that if and when--I believe it will 
ultimately be when--he is confirmed, he will turn into a Justice who 
will vote on one side of issues sometimes and make certain people happy 
and others unhappy at other times. I think he is going to be a 
straight-down-the-middle judge who calls it as he sees it, and I think 
that is exactly what we need on the Supreme Court today.
  The other quality he has demonstrated as chief judge of the circuit 
court is the ability to bring consensus. By all reports of people who 
have worked with him--judges, people who have known him--he is a 
consensus builder. He is not a flamboyant, strong, charismatic kind of 
guy, but he brings people together. He marshals the court. He works 
toward unanimity. He is not a dissenter. He is not a firebrand. He is 
principled, but he is a consensus builder, and we definitely need that.
  Five-to-four decisions, whichever way they go, in the long run are 
not good for the country, in my view, because they divide us and 
illegitimize the Court as a judicial arbiter of the Constitution as 
opposed to another political branch of our government.
  So I believe what we should be doing is fulfilling our constitutional 
responsibility--not to vote yes, necessarily. The Constitution does not 
say the President shall nominate and we shall approve--but to consider 
and to advise and consent. That involves the simple matter of a hearing 
and would include the American people in the process.
  There is a lot of discussion here of ``let's hear from the American 
people.'' The way to hear from the American people is to have hearings, 
let them watch, let them take the measure of this person, and let us 
know how they think we should carry forth our constitutional 
responsibility in this case.
  He appears to be--from what I know so far--an extraordinary 
candidate, not ideological, not partisan. I have no idea of his 
partisan background. I did not even ask him. It occurred to me 
afterward that perhaps I should have, but I didn't. I know he has 
worked in the Justice Department. He has been a prosecutor. He has been 
a private attorney, and he has been a very well respected judge.
  I think he is a judge's judge, a lawyer's lawyer. That is the kind of 
person I think we need on the Court in this day and age. So I hope we 
can find a way to move to hearings, to allow the American people to 
participate in this process, to watch the process unfold, to get to 
know the judge. Let's get to know him better and then make our decision 
so we can carry out our constitutional responsibility to advise and 
consent.
  That, I believe, is what we owe the Constitution and what we owe the 
people of the United States.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sullivan). The Senator from Pennsylvania.
  Mr. CASEY. Mr. President, I ask to speak in morning business.
  The PRESIDING OFFICER. The Senator is recognized.

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