[Congressional Record (Bound Edition), Volume 162 (2016), Part 4]
[Senate]
[Pages 4923-4925]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. CARDIN. Mr. President, I recently had the opportunity to convene 
a roundtable at the University of Baltimore School of Law entitled: 
``Why Nine? A Discussion on the Importance of a Fully Functioning 
Supreme Court.'' I want to particularly thank the dean of the 
University of Baltimore Law School, Ronald Weich, for moderating this 
roundtable and bringing his extensive experience to this discussion. 
Ron Weich is well known here. He is the former chief counsel to Senate 
Minority Leader Reid and former Assistant Attorney General for 
Legislative Affairs at the U.S. Justice Department.
  I want to share with my colleagues some of the comments that were 
made by the people who were at that roundtable discussion.
  Caroline Frederickson, the president of the American Constitution 
Society, discussed the lengthy delays for trial and appellate court 
decisions. Lengthy delays in filling vacancies mean that justice 
delayed is justice denied. We have seen a growing number of judicial 
emergencies as a result of the Senate leadership's slow-walking of the 
consideration of judicial nominations, as I discussed recently on the 
floor of the Senate. One of these is my own State of Maryland's 
district court vacancy, in which Paula Xinis has been waiting for floor 
action now since she was reported out of the Judiciary Committee 
unanimously in September of 2015. She has waited over 7 months for 
action on the floor of the Senate.
  Ms. Frederickson also noted the increasing number of 4-to-4 decisions 
being issued by the Supreme Court. She warned that a Court that is 
split on a tough 4-to-4 decision might be tempted to ``legislate'' a 
solution by asking the parties to reshape the legal questions before 
the Court and go beyond the narrow case or controversy that is properly 
before the Court. That is something all of us want to avoid. We don't 
want the Court legislating.
  John Greenbaum, chief counsel and senior deputy director of the 
Lawyers' Committee for Civil Rights Under Law, told the group that if 
Republicans hold to their pledge to block the filling of the Supreme 
Court vacancy until a new President takes office, this vacancy would 
span and negatively impact two terms of the Court and could last more 
than a year.
  The Presidential election occurs in November of 2016, but the new 
President is not sworn into office until late January 2017. Allowing 
for several months, which is the standard time for consideration of a 
Supreme Court nominee, it could be next spring of 2017, more than a 
year after Justice Scalia's death before the vacancy is filled.
  Mr. Greenbaum noted that the Court issued a number of 5-to-4 
decisions in

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the current term, many of which drew a wide range of amicus briefs from 
all sides on the issue, and that the Court was trying to resolve 
circuit splits in a number of these cases. It cannot resolve circuit 
splits with a 4-to-4 vote, leaving us with different laws in different 
parts of the country.
  Michele Jawando, vice president of legal progress at the Center for 
American Progress, discussed focusing the American people's attention 
on the third branch of government--the judiciary--which often does not 
receive the same level of focus as the executive and legislative 
branches.
  Professor Charles Tiefer, a professor at the University of Baltimore 
School of Law, previously served as deputy general counsel of the U.S. 
House of Representatives and served as assistant legal counsel for the 
U.S. Senate. He formerly clerked on the U.S. Court of Appeals for the 
District of Columbia Circuit, the court that Chief Judge Garland 
currently sits. Professor Tiefer cited two interesting precedents we 
should keep in mind as the Senate considers--or, frankly, fails to 
consider--Chief Judge Garland's nomination.
  In 1988, the Senate confirmed Justice Kennedy to the Supreme Court, 
even though the Senate was controlled by a Democratic majority and 
President Reagan was in his final year of office--very similar to the 
circumstances we have today. In 1991, when Democrats controlled the 
Senate, they allowed the nomination of Clarence Thomas to reach the 
Senate floor even though the Judiciary Committee had not favorably 
recommended him. The Judiciary Committee, under Chairman Biden, 
believed the full Senate should debate a nomination for the Supreme 
Court of the United States and that each Senator should cast their vote 
either for or against the nomination. Ultimately, the Senate narrowly 
confirmed Justice Thomas by a 52-to-48 vote.
  Indeed, turning to Judge Garland, no nominee--and, really, no 
President--has ever been treated this way by the Senate. Since public 
confirmation hearings of Supreme Court nominations began a century ago 
in the Judiciary Committee, the Senate has never denied a Supreme Court 
nominee a hearing and a vote. This would be the first. By refusing to 
follow this practice, the Senate Judiciary Committee and Senate 
leadership are abrogating their constitutional duties. This is an 
affront to the Constitution. It is not a political assault. This is an 
assault on the Constitution.
  Turning to article II, the Executive power in the Constitution, the 
Senate Republican leadership is trying to unilaterally alter the term 
of the President from 4 years to 3 years and somehow argue that the 
President in his or her final year of office cannot do his or her job, 
which includes nominating Supreme Court Justices if a vacancy occurs. 
This flies in the face of the plain text of the Constitution. The 
Constitution commands that the President ``shall'' nominate Supreme 
Court Justices in the event of a vacancy. The Senate is failing to 
exercise its constitutional duty to advise and consent.
  Turning to article III, the judicial power of the Constitution, the 
Senate leadership is trying to unilaterally shrink the Supreme Court 
from nine justices to eight by creating an artificial vacancy for an 
indefinite period of time. Congress, by enacting a statute, has already 
set the size of the Supreme Court as consisting of nine justices. There 
is an odd number for a reason--to enable the Court to break tie votes. 
The Senate Republican leadership is pursuing a strategy that will 
hobble the Court for two terms.
  This results in an increasing number of circuit splits and a 
nonuniform application of Federal law across the country, with no 
resolution in sight, meaning that an individual's rights and 
responsibilities under Federal law would depend on what circuit they 
happen to live in or do business in.
  Article VI of the Constitution provides that ``the Senators and 
Representatives before mentioned, and the Members of the several State 
Legislatures, and all executive and judicial Officers, both of the 
United States and of the several States, shall be bound by Oath of 
Affirmation, to support this Constitution.'' And I will say that what 
we are doing right now is abrogating that right.
  Professor Michael Higginbotham is the Dean Joseph Curtis Professor at 
the University of Baltimore School of Law, and he was a former law 
clerk to a U.S. circuit judge. Professor Higginbotham agreed it is 
unprecedented for the Senate not even to consider or vote on a 
nomination for a Supreme Corporate Justice. He cited the famous case of 
Marbury v. Madison, decided by the Supreme Court in 1803. The case held 
that a constitutional right without a remedy is no right at all, and 
that a right must have a remedy. But what happens when the Supreme 
Court cannot issue a final decision on a complex or controversial case 
in the law? What is the remedy that follows that right? What happens 
when one branch of government refuses to do its job, endangering the 
operation of another equal and independent branch of government? A 
Supreme Court that divides by a vote of 4 to 4 in major decisions leads 
to uncertainty and lack of specificity in the law, due to splits in the 
various circuit courts of appeal around the Nation.
  Amy Matsui is the senior counsel and director of government relations 
at the National Women's Law Center. She reminded us that women's lives 
are affected every day by the decisions of the Supreme Court and lower 
Federal courts. Lawyers have an innate respect for the rule of law and 
legal process. If lawyers report to work and do their job every day, 
why can't the Senate? She asked a good question.
  Thiru Vignarajah is the Deputy Attorney General of Maryland, serving 
under the leadership of Maryland Attorney General Brian Frosh. He 
discussed the importance of the judiciary being able to function 
independently and efficiently. Out of the thousands of petitions for 
certiorari, the Supreme Court grants about 1 percent of the cases, 
ultimately deciding about 150 cases a year. Dozens of these cases were 
5-to-4 decisions of a divided Supreme Court. These are hard cases where 
reasonable jurists can disagree, and indeed a number of these cases 
have split circuit courts around the Nation, with judges issuing 
conflicting decisions on differing interpretations of Federal law.
  This uncertainty is bad for the marketplace, bad for business, bad 
for lawyers, bad for judges, bad for litigants, and ultimately bad for 
the American people. Quite frankly, in some cases, businesses would 
prefer any ruling because it at least gives certainty about what the 
law is. Businesses do not want Federal law to become a patchwork and 
vary from circuit to circuit and State to State because a divided 
Supreme Court cannot resolve the issue.
  Kyle Barry, the director of justice programs at the Alliance of 
Justice, discussed the importance of judicial independence. While the 
President has the power of the sword and controls government agencies 
and the Congress has the power of the purse and the ability to enact or 
change laws, the judiciary relies on the other branches of government 
and the American people to carry out its decisions.
  The Framers of our Constitution gave the Justices lifetime tenure 
because it insulates them from the political pressures under Article 
III, Section 1, of the Constitution, so that they would not have to 
worry about losing their job through congressional impeachment if they 
reached an unpopular decision. Note that these are the only lifetime 
positions in the Federal Government. The Framers forbade Congress from 
cutting the salaries of the Justices while in office under Article III, 
Section 1, of the Constitution, to avoid retribution from Congress for 
unpopular decisions of the Court.
  By undermining the independence of the Supreme Court and by making 
the Court appear to be a political entity, Republican Senate leadership 
is undermining the public's confidence in the Court and ultimately the 
very legitimacy of the Court. Our Framers intended with these very 
specific constitutional provisions to protect the Court and the Federal 
judiciary from politics.
  The Senate should do its job and carry out its mission to fill 
vacancies

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of the Supreme Court, so that Americans will have confidence that the 
Supreme Court decides cases based on the law, Constitution, and facts 
of the case and so that politics does not play a role. The American 
public supports Congress doing its job and giving Judge Garland the 
hearing he deserves.
  The stakes at the Supreme Court can involve matters of life and 
death. In death penalty cases, if the Court splits 4 to 4, a defendant 
would be put to death even though the Court decision did not 
definitively resolve the legal issue in the case.
  Chief Judge Garland is a nominee for the Supreme Court and should be 
dealt with in this term of Congress. It is not a matter for the next 
President or the next Congress. There are 9 months left in this year, 
and to suggest that we don't have the time and the President doesn't 
have the authority to appoint a nominee is absolutely outrageous. It is 
an affront to the Constitution.
  We need to go through the process and give Chief Judge Garland a 
chance. I have met with Chief Judge Garland and believe he is eminently 
qualified to be a Supreme Court Justice. But before the Senate makes a 
final decision, we need to do our job and vet the nominee, hold a 
hearing, and hold a vote that puts all Senators on the record. How can 
Senators in good conscience reject this Supreme Court nominee without a 
fair vetting and hearing or process? I think it is hard to understand 
how you can be excused from doing your job for 9 months by not having a 
confirmation hearing and vote. The President did his job, and it is now 
time for the Senate to do its job.
  The American people want to see nine justices on the Supreme Court 
when it convenes its new term in October. The Senate now has the 
responsibility and duty to respect the independence of the Federal 
judiciary, the authority of the President to nominate Justices, and the 
powers of the Senate to advise and consent on nominations.
  Let's remember our oaths to support the Constitution. Let's do our 
job. Let's take up the Garland nomination.
  I yield the floor.
  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. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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