[Congressional Record (Bound Edition), Volume 162 (2016), Part 4]
[Senate]
[Pages 5167-5168]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     NOMINATION OF MERRICK GARLAND

  Mr. LEAHY. Mr. President, yesterday I had the honor of speaking at an 
event hosted by the Edward M. Kennedy Institute for the U.S. Senate on 
this body's role in considering Supreme Court nominees. The institute 
is a wonderful organization ``dedicated to educating the public about 
the important role of the Senate in our government.'' My friend Ted 
Kennedy loved the Senate and worked hard every day here to improve the 
lives of the people of Massachusetts and the people of America. I thank 
Vicki Kennedy for all of her efforts to build the institute. She has 
also continued the Kennedy legacy by working to advance medical 
research and health care for all Americans. I was honored by her 
invitation to speak at the event.
  The institute's event was held on the important and timely issue of 
the Senate's constitutional role in providing advice and consent on 
nominees to the Supreme Court. As Senator Kennedy once said, ``Few 
responsibilities we have as Senators are more important than our 
responsibility to advise and consent to the nominations by the 
President to the Supreme Court.'' Ted understood the momentous nature 
of Supreme Court nominations, as well as the Senate's undeniable and 
irreplaceable constitutional role in providing advice and consent on 
the President's nominees.
  And the Senate Judiciary Committee, on which Senator Kennedy and I 
served together for years, plays a singularly important role in 
considering nominees to serve in our Federal judiciary. But that 
critical role has been abdicated by the Senate Republicans' 
unprecedented decision to deny any process to Chief Judge Merrick 
Garland, who has been nominated to the Supreme Court.
  In the last 100 years since public confirmation hearings began in the 
Judiciary Committee for Supreme Court nominees, the Senate has never 
denied a nominee a hearing and a vote. No nominee has been treated the 
way Senate Republicans are treating Chief Judge Garland. Even when a 
majority of the Judiciary Committee did not support a nominee, the 
committee still reported out the nomination for a vote on the Senate 
floor. This allowed all Senators to exercise their duty to consider the 
nominee.
  In fact, when I became chairman of the Judiciary Committee in 2001 
during the Bush administration, I and Senator Hatch--who was then the 
ranking member--memorialized how the committee would continue in this 
tradition to consider President George W. Bush's Supreme Court 
nominees. In a letter to all Senators, Senator Hatch and I wrote, ``The 
Judiciary Committee's traditional practice has been to report Supreme 
Court nominees to the Senate once the Committee has completed its 
considerations. This has been true even in cases where Supreme Court 
nominees were opposed by a majority of the Judiciary Committee.'' 
Senator Hatch and I agreed to that. And then-Majority Leader Trent Lott 
agreed, too, saying this back in 2001: ``the Senate has a long record 
allowing the Supreme Court nominees of the President to be given a vote 
on the floor of the Senate.'' We all agreed to this because that is 
what we in the Senate have done for a century, in an open and 
transparent manner, allowing the American people to see us doing our 
work.
  This is exactly what the Judiciary Committee should be doing this 
very day. It has now been 42 days since Chief Judge Merrick Garland was 
nominated to the Supreme Court. If we follow the average confirmation 
schedule for Supreme Court nominees over the last 40 years, the 
Judiciary Committee should be convening a hearing today on Chief Judge 
Garland's nomination. The late Justice Scalia, whom Chief Judge Garland 
would replace on the Court, received a hearing 42 days after his 
nomination. And Democrats were in charge when the Senate last voted on 
a Supreme Court nominee in an election year when Justice Anthony 
Kennedy was confirmed in 1988. Justice Kennedy received a hearing in 
the Judiciary Committee just 14 days after President Reagan nominated 
him. Had he been nominated at the same time as Chief Judge Garland, his 
hearings would already have been completed.
  Last month, the Kennedy Institute released a national poll that 
showed just 36 percent of Americans know that the Senate confirms 
Supreme Court nominees. Our response as Senators to this unfortunate 
fact should not be to deny Chief Judge Merrick Garland a public hearing 
and a vote, breaking 100 years of Senate tradition and failing to do 
our jobs as Senators. Instead, our response should be to engage with 
the American people and to show them through our actions that the 
Senate can hold up its part of the constitutional framework.
  And although many Americans may not be able to tell you that the 
Senate confirms Supreme Court nominees, a solid majority of the 
American public does know--by a 2-to-1 margin--that Chief Judge Garland 
deserves to have a hearing. That strong majority of the public is 
telling us that the Senate should show up for work and carry out its 
constitutional duty by holding a hearing for Chief Judge Garland.
  We are hearing that call from so many around the country, including 
historians, faith groups, civil rights organizations, and legal 
leaders. In an op-ed yesterday, the president of the Vermont Bar 
Association, Jennifer Emens-Butler, and others, including a former 
president of the American Bar Association, made clear that Republicans' 
obstruction of Chief Judge Garland's nomination undermines the rule of 
law. They wrote: ``As leaders in the legal profession, we are committed 
to protecting the rule of law. Thus, we cannot remain silent as the 
Senate refuses to consider Garland. This level of obstructionism is 
unprecedented in American history and undermines the rule of law, the 
very foundation on which this great nation was built.'' I ask unanimous 
consent that a copy of this op-ed be printed in the Record following my 
remarks.
  Some Republican Senators have claimed that their unprecedented 
obstruction against Chief Judge Garland is based on ``principle, not 
the person.'' There is no principle in refusing to confirm Supreme 
Court nominees in election years, as the Senate has done over a dozen 
times, most recently for President Reagan's last nominee to the Court. 
Furthermore, we have seen Republican Senators and outside interest 
groups attack Chief Judge Garland's judicial record, but then refuse to 
allow him the chance to respond at a public hearing. This is not 
principled, it is not fair, and it is not right.
  To deny Chief Judge Garland a public hearing and a vote would be 
truly historic--but that is not the kind of history the Senate should 
be proud of. Over the more than 40 years I have served in the Senate, I 
recall times when the consideration of Supreme Court nominees was 
controversial.
  But in every one of those instances, the nominee received a public 
hearing and a vote. We did not avoid doing our jobs simply because it 
was hard.
  We must remember why we are here in the United States Senate. We are 
all here to serve the American people by carrying out our sworn oaths 
to uphold the Constitution. Protection of our enduring constitutional 
system requires that we hold our constitutional duties as Senators 
above the partisan politics of the now. I hope that Republicans will 
soon reverse course and put aside their obstruction to move forward on 
Chief Judge Garland's nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     [From The Hill, Apr. 26, 2016]

 Senate's Refusal To Move on Garland Continues To Undermine Rule of Law

     (By Monte Frank, James R. Silkenat, and Jennifer Emens-Butler)

       A month ago, Sen. Richard Blumenthal (D-Conn.) and Monte 
     Frank (one of the co-authors of this piece) warned that the 
     Senate's refusal to consider President Obama's nomination of 
     Chief Judge Merrick Garland to the U.S. Supreme Court would 
     undermine the rule of law. Despite this warning, the Senate 
     Judiciary Committee has continued its blocking tactics and 
     has rebuffed calls for hearings and a vote. As leaders in the 
     legal profession, we are committed to protecting the rule of 
     law. Thus, we cannot remain silent as the Senate refuses to 
     consider Garland. This level of obstructionism is 
     unprecedented in American history and undermines

[[Page 5168]]

     the rule of law, the very foundation on which this great 
     nation was built.
       The rule of law is the restriction of the arbitrary 
     exercise of power by subordinating such exercise to well-
     defined and established laws. As discussed in the earlier 
     piece with Blumenthal, in the United States, the rule of law 
     is grounded in our Constitution, which unambiguously lays out 
     the process for filling vacancies to the Supreme Court. 
     Article II, Section 2 of the Constitution states the roles 
     the president and the Senate must play in the appointment 
     process: ``The President . . . shall nominate, and by and 
     with the Advice and Consent of the Senate, shall appoint . . 
     . Judges of the Supreme Court.'' The Constitution is also 
     clear that the president's term is four years, not three or 
     three-and-one-fourth years.
       Now that Obama has fulfilled his constitutional 
     responsibility and made a nomination promptly to fill the 
     current Supreme Court vacancy, the Constitution requires the 
     Senate to likewise fulfill its responsibility to consider and 
     act promptly on the nominee. The Senate needs to move forward 
     by holding meetings, conducting hearings and ultimately 
     taking a vote.
       While Garland is preeminently qualified, having served as 
     chief judge of the United States Court of Appeals for the 
     District of Columbia Circuit since 1997, whether the Senate 
     ultimately confirms him is an entirely different question 
     than whether the Senate should even consider him. The current 
     arbitrary exercise of power to deny Garland a hearing and a 
     vote is the kind of abuse the rule of law is designed to 
     protect us from. If the well-defined and established 
     provisions of the Constitution are permitted to be willfully 
     ignored, then the rule of law will be undermined.
       In a letter to the leadership of the Senate, 15 past-
     presidents of the American Bar Association emphasized their 
     utmost respect for the rule of law and the ``need for the 
     judicial system to function independently of partisan 
     influences. The founding fathers understood this as well, and 
     structured the constitutional system of government to 
     insulate the judiciary from changing political tides. The 
     stated refusal to fill the ninth seat of the Supreme Court 
     injects a degree of politics into the judicial branch that 
     materially hampers the effective operation of our nation's 
     highest court and the lower courts over which it presides.''
       The Senate should follow the example set by President 
     Reagan and then-Senate Judiciary Committee Chair Joe Biden 
     (D-Del.) in considering Justice Anthony Kennedy, who was 
     confirmed in an election year. Reagan urged the nation to 
     ``join together in a bipartisan effort to fulfill our 
     constitutional obligation of restoring the United States 
     Supreme Court to full strength.'' He asked the Senate for 
     ``prompt hearings conducted in the spirit of cooperation and 
     bipartisanship.'' Biden responded: ``I'm glad the President 
     has made his choice. We will get the process under way and 
     move as rapidly as is prudent. We want to conduct the 
     committee's review with both thoroughness and dispatch.'' 
     Sen. Chuck Grassley (R-Iowa) was also on the Senate Judiciary 
     Committee at that time. Now that he is the chair, he should 
     follow the example set by Reagan and Biden.
       The Senate's refusal to process the nomination has already 
     impacted the lives of everyday people throughout the United 
     States. If lower court decisions are confirmed simply because 
     of a tie in the Supreme Court, as has already occurred and 
     will continue to occur until the vacancy is filled, then the 
     court will not have created precedent and the lower courts 
     will not be able to rely on those decisions. Open questions 
     of law on significant issues will continue to be left 
     unanswered. To fill this void, the Senate must move forward 
     on a bipartisan basis with meetings and hearings, 
     consideration of and a timely vote on the nominee.
       President Reagan's words in 1988 on the confirmation of 
     Justice Kennedy are just as applicable today: ``The Federal 
     Judiciary is too important to be made a political football. I 
     would hope, and the American people should expect . . . for 
     the Senate to get to work and act.'' We urge the Senate to 
     put partisan politics aside for the good of the American 
     people and to avoid undermining the rule of law.

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