[Congressional Record (Bound Edition), Volume 162 (2016), Part 5]
[Senate]
[Pages 6118-6121]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, today is the 62nd anniversary of the 
Supreme Court's landmark decision in Brown v. Board of Education, which 
reaffirmed our Nation's commitment to justice and equality by ending 
racial segregation in our public schools. The unanimous Court overruled 
one of its worst precedents in Plessy v. Ferguson and held that ``in 
the field of public education, the doctrine of `separate but equal' has 
no place. Separate educational facilities are inherently unequal.''
  For generations, the Brown v. Board decision has been viewed as a 
turning point in the effort to eradicate the shameful legacy of Jim 
Crow and racial segregation. On this anniversary, we are reminded of 
the significance of a strong and independent Supreme Court, as set 
forth in our Constitution. Americans respect the Court as our guardian 
of the Constitution and the rule of law. Each generation of Americans 
since the Nation's founding has worked to bend the arc of the moral 
universe further toward justice, seeking to fulfill the Constitution's 
stated purpose of forming ``a more perfect Union.'' In Brown v. Board, 
the Court's unanimous decision reflected that we are a nation of laws 
and that equal justice under law has meaning.
  Unfortunately, while we commemorate this momentous Supreme Court 
decision today, we find the Supreme Court today weakened by Senate 
Republicans' current obstruction. It is an undisputable fact that the 
Republicans' refusal to consider Chief Judge Merrick Garland's 
nomination means that the Supreme Court will be without a full nine 
justices for more than one of its terms. The Republican argument 
articulated in February that they should delay all consideration 
because it is an election year has no precedent and is unprincipled. It 
shows contempt for the Court as an institution and as an independent 
and coequal branch of government.
  The result of Republicans' sustained obstruction is that the Court is 
taking

[[Page 6119]]

on fewer cases, and even in the cases it does hear, it has repeatedly 
been unable to definitively resolve the issue before it. A May 1 
article by Robert Barnes in the Washington Post notes that the number 
of cases that the Justices have accepted has fallen, and the experts in 
that article attribute this to the Court being down one member. As one 
expert noted in the article, ``there seem to be a number of `defensive 
denials,' meaning neither side of the ideologically split court wants 
to take some cases because of uncertainty about how it will turn out, 
or whether the court will be able to reach a decision.''
  Another harmful effect of this Republican obstruction is that the 
Court has been contorting itself to avoid 4-4 splits by leaving the key 
questions of cases undecided. Just yesterday, in two different cases, 
the Court was unable to make a final decision on the merits. In both 
cases, the appellate courts are split on the law, and the Supreme Court 
was unable to live up to its name. One of the cases, Zubik v. Burwell, 
involved religiously affiliated employers' objections to their 
employees' health insurance coverage for contraception. The Court had 
already taken the unusual step of ordering supplemental briefing in the 
case, seemingly to avoid a 4-4 split. Even with the extra briefing, the 
Court was still unable to make a decision. Instead, it sent the issue 
back to the lower courts expressing ``no view on the merits of the 
cases.'' In the second case, Spokeo v. Robbins, the question at issue 
was Congress's ability to statutorily create rights that confer 
standing for plaintiffs to sue when those rights are violated. The case 
involves important privacy questions about Americans' power to take 
action when incorrect information is posted about them online. The 
Court, however, failed to reach the key question at issue. The effect 
is that the current split among the Circuit Courts of Appeals remains 
unresolved. As yesterday's New York Times editorial notes, ``Every day 
that passes without a ninth justice undermines the Supreme Court's 
ability to function, and leaves millions of Americans waiting for 
justice or clarity as major legal questions are unresolved.''
  In addition to these contortions, the Court has deadlocked in at 
least three instances on significant legal issues before it. These 4-4 
splits have real, practical consequences. As a recent Economist article 
noted, ``By letting lower-court decisions stand but not requiring other 
courts to abide by the ruling, the stage is set for odd state-by-state 
or district-by-district distinctions when it comes to the meaning of 
laws or the constitution.'' I ask unanimous consent that all three 
articles be printed in the Record at the conclusion of my remarks.
  Republicans' refusal to do their jobs and consider Chief Judge 
Garland's nomination diminishes the role of the Supreme Court. In 
nominating Chief Judge Garland to the Supreme Court, President Obama 
has picked an eminently qualified judge who has more Federal judicial 
experience than any other Supreme Court nominee in history. This is an 
individual who has received praise across the political spectrum. But 
instead of delving into his lengthy public service record for 
themselves, Republicans have decided to outsource their jobs to outside 
interest groups who have spent millions of dollars to smear Chief Judge 
Garland. And worse, they continue to refuse to allow Chief Judge 
Garland a chance to respond at a public hearing.
  As long as they stick to this unprincipled position, Republicans will 
continue to undermine the Court's ability to serve its role under our 
Constitution as the final arbiter of our Nation's laws. Republicans 
should reverse course and treat the Court as the independent and 
coequal branch of government that it is.
  So today, let us not only celebrate the Court's historic decision in 
Brown, but also resolve to return this venerated institution to full 
strength. It begins with giving Chief Judge Garland a fair public 
hearing and a vote.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, May 1, 2016]

  Scalia's Death Affecting Next Term, Too? Pace of Accepted Cases at 
                          Supreme Court Slows

                           (By Robert Barnes)

       The ways in which Justice Antonin Scalia's sudden death are 
     altering the current Supreme Court term have been widely 
     chronicled.
       But it appears the absence of Scalia will be felt on the 
     court's work next term, as well.
       The number of cases the justices have accepted has fallen, 
     meaning that a docket that in recent years has been smaller 
     than what is traditional is shrinking still.
       The court has accepted only six cases since Scalia died 
     Feb. 13. The number is low compared with the average, 
     Scotusblog.com editor Amy Howe said at an event last week 
     reviewing the Supreme Court's work.
       And none of the cases that the court has accepted for the 
     term that begins in October approach the level of controversy 
     that have marked the dramatic rulings of recent years.
       A panel of court experts assembled by the Constitutional 
     Accountability Center last week offered a number of reasons 
     for the reduced workload.
       But they boiled down to a reluctance of the ideologically 
     divided eight-member court to take on an issue in which it 
     might not be able to provide a clear answer.
       First, a reminder of the enormous leeway the justices have 
     in setting their agenda.
       An outraged citizen's vow to fight an injustice ``all the 
     way to the Supreme Court'' comes to pass only if the Supreme 
     Court consents.
       With a few exceptions of cases the court is mandated to 
     consider, justices are unencumbered as they cull through the 
     thousands of petitions seeking review. In recent years, only 
     about 70 or so cases receive writs of certiorari--``cert 
     grants''--signaling that the justices will review the 
     decision of the lower court.
       It takes the approval of four justices to schedule a case 
     for full briefing and oral argument. The court makes those 
     decisions all year--it could announce on Monday that it has 
     accepted more cases--but generally those granted after 
     January are placed on the court's docket for the term that 
     begins the following October.
       So there is plenty of time for the court to pick up the 
     pace. But based on what's in the pipeline, Howe suggested 
     that there could be plenty of lulls in the court's schedule.
       If Senate Republicans hold true to their pledge not to hold 
     hearings or a vote on President Obama's nomination of U.S. 
     Circuit Judge Merrick Garland to fill Scalia's seat before 
     the election, the court will enter the next term one justice 
     down. And if a lame-duck Senate after the election does not 
     consider him, it would be sometime in the spring, at the 
     earliest, before the court is back to full strength.
       John P. Elwood, a Washington lawyer and Supreme Court 
     specialist, said ``having an extra member matters.''
       He watches the Supreme Court's docket as closely as anyone, 
     writing a column for Scotusblog about the cases the court 
     considers at its private conferences and which seem likely to 
     be granted.
       He said there seem to be a number of ``defensive denials,'' 
     meaning neither side of the ideologically split court wants 
     to take some cases because of uncertainty about how it will 
     turn out, or whether the court will be able to reach a 
     decision.
       ``The court already is a defensive enough institution,'' 
     Elwood said. He said that Justices Clarence Thomas and 
     Stephen G. Breyer have noted that the court is cautious about 
     granting cert in the best of times.
       They ``have said essentially, `You can't screw up by not 
     taking a case, you can only screw up by taking a case,''' 
     Elwood said. ``And now there's one more reason not to take a 
     case: that the court may blow up and not be able to decide 
     the thing.''
       Sherrilyn Ifill, president and director-counsel of the 
     NAACP Legal Defense and Educational Fund, said the apparent 
     slowdown is another consequence of waiting to fill Scalia's 
     seat.
       It is a rebuttal to ``all of these sanguine statements that 
     we can have eight justices and it just doesn't matter, we'll 
     just kick the can down the road,'' she said.
       Ifill often disagrees with the decisions of the 
     conservative court but said that everyone agrees ``this is a 
     branch of government that actually gets the job done.'' She 
     added: ``I think the court is trying to be prudent and not be 
     a participant in its own demise by not taking these cases it 
     can't decide.''
       Brianne J. Gorod, the Constitutional Accountability 
     Center's chief counsel, said justices ``know that if the 
     issue is an important one it will probably come back in a 
     year or two, when hopefully there will be a ninth justice.''
       Andrew J. Pincus, another Washington lawyer who practices 
     before the court, agreed with this analysis but said it is 
     the wrong approach for the court to take.
       ``This sounds a little self-interested,'' Pincus began, but 
     he said the court has a ``wrongheaded view'' about the 
     frequency with which issues appear before it, and a 
     ``complete misperception of the real world impact of lower-
     court decisions that are out there for a long time that 
     people in the real world have to comply with.''

[[Page 6120]]

       But if it is easy to detect a slowdown in the court's 
     grants, it is more difficult to identify which cases the 
     court might have taken if at full strength.
       The court makes those decisions in secret. No vote total is 
     announced and rarely is an explanation given.
       So there can only be speculation about which cases are 
     skipped because the court is divided, or which the justices 
     agreed the lower court got it right and there is no work for 
     them to do.
                                  ____


                [From the New York Times, May 16, 2016]

                       The Crippled Supreme Court

       Every day that passes without a ninth justice undermines 
     the Supreme Court's ability to function, and leaves millions 
     of Americans waiting for justice or clarity as major legal 
     questions are unresolved.
       On Monday, the eight-member court avoided issuing a ruling 
     on one of this term's biggest cases, Zubik v. Burwell, which 
     challenges the Affordable Care Act's requirement that 
     employers' health care plans cover the cost of birth control 
     for their employees. In an unsigned opinion, the court sent 
     the lawsuits back to the lower federal courts, with 
     instructions to try to craft a compromise that would be 
     acceptable to everyone.
       This is the second time since Justice Antonin Scalia's 
     death in February that the court has failed to reach a 
     decision in a high-profile case; in March, the court split 4 
     to 4 in a labor case involving the longstanding right of 
     public-sector unions, which represent millions of American 
     workers, to charge collective bargaining fees to nonmembers.
       The Zubik litigation, which involves seven separate cases, 
     was brought by religiously affiliated nonprofit employers 
     like hospitals, colleges and social service organizations 
     that do not want any role in giving their employees access to 
     contraception.
       The Obama administration, mindful of concerns over 
     religious freedom, has already provided a way out for these 
     employers: They must notify their insurer or the government, 
     in writing, of their objection, at which point the government 
     takes over and provides coverage for the contraceptives at no 
     cost to the employers.
       This sensible arrangement was not enough for several 
     plaintiffs who said it still violated their religious freedom 
     under a federal law, because the act of notification itself 
     made them complicit in the provision of birth control.
       Eight federal courts of appeals have already rejected this 
     claim, finding that such a minor requirement did not place a 
     substantial burden on the objectors' religious freedom. In 
     her opinion for the Court of Appeals for the District of 
     Columbia Circuit, Judge Cornelia Pillard wrote that under 
     both federal law and the Constitution, ``freedom of religious 
     exercise is protected but not absolute.'' This was the right 
     answer, and should have easily guided the justices in 
     resolving this case.
       But in a highly unusual order issued days after oral 
     arguments, the justices asked both sides to consider a 
     potential compromise--having a religiously affiliated 
     employer tell an insurer of its objection to birth control 
     coverage, and then having the insurer separately notify 
     employees that it will provide cost-free contraceptives, 
     without any involvement by the employer.
       In Monday's opinion, the court said both sides' responses 
     indicated that a compromise was possible. Without weighing in 
     on the merits of the litigation, the court sent the lawsuits 
     back to the federal appeals courts and told them to give the 
     parties ``an opportunity to arrive at an approach going 
     forward that accommodates petitioners' religious exercise 
     while at the same time ensuring that women covered by 
     petitioners' health plans `receive full and equal health 
     coverage, including contraceptive coverage.'''
       This move solves nothing. Even if these plaintiffs can find 
     their way to an agreement with the government that satisfies 
     their religious objections, there are other employers with 
     different religious beliefs who will not be satisfied, and 
     more lawsuits are sure to follow.
       The court could have avoided this by affirming the 
     appellate decisions that correctly ruled in the government's 
     favor. Unfortunately, the justices appear to be evenly split 
     on this issue, as they may be on other significant cases 
     pending before them.
       The court's job is not to propose complicated compromises 
     for individual litigants; it is to provide the final word in 
     interpreting the Constitution and the nation's laws. Despite 
     what Senate Republicans may say about the lack of harm in the 
     delay in filling the vacancy, the court cannot do its job 
     without a full bench.
                                  ____


                   [From the Economist, May 9, 2016]

                 Why the Supreme Court Is Slowing Down

       With five votes, the late Justice William Brennan liked to 
     tell his clerks, ``you can do anything around here''. Justice 
     Brennan's rule still applies after the death in February of 
     Antonin Scalia. But with only eight justices remaining, the 
     magic number of five is now harder to come by. Twice since 
     Mr. Scalia's death the Supreme Court has performed the 
     judicial equivalent of throwing up its hands. In a small case 
     concerning banking rules and in a hugely consequential case 
     challenging the future of public-sector unions, the justices 
     issued one-sentence per curiam (``by the court'') rulings: 
     ``The judgment is affirmed by an equally divided court.'' A 
     tie in the high court means that the ruling in the court 
     below stands. But a tie-induced affirmance does not bind 
     other lower courts, and the judgment has no value as a 
     precedent. A tie, in short, leaves everything as it was and 
     as it would have been had the justices never agreed to hear 
     the case in the first place.
       That's a lot of wasted ink, paper, time and breath. And now 
     it seems the justices may be keen to reduce future futile 
     efforts as they contemplate a year or more with a missing 
     colleague. As Robert Barnes wrote in the Washington Post last 
     week, the Supreme Court's pace of ``grants''--cases it agrees 
     to take up--has slowed. Only 12 cases are now on the docket 
     for the October 2016 term that begins in the fall, and grants 
     are lagging below the average of recent years. The slow pace 
     is especially notable because it marks a slowdown from an 
     already highly attenuated docket. Seventy years ago, the 
     justices decided 200 or more cases a year; that number 
     declined to about 150 in the 1980s and then plummeted into 
     the 80s and, in recent years, the 70s. The justices will 
     grant more cases in dribs and drabs following their private 
     conferences in May and June and after the so-called ``long-
     conference'' in September (followed by more conferences 
     throughout the autumn and winter), but early indications are 
     that the term starting in October may be one of the most 
     relaxed in recent memory.
       The Obama administration continues to push Senate 
     Republicans to change their minds and hold confirmation 
     hearings for Merrick Garland, chief judge of the District of 
     Columbia circuit court. While a number of GOP senators have 
     agreed to meet Mr. Garland for lunch or tea, none have 
     endorsed him or said he should have a hearing. The fight to 
     fill Mr. Scalia's seat before the next president takes office 
     includes a new hashtag (#WeNeedNine) and a counter showing 
     the number of ``days of obstruction'' in the Senate since Mr. 
     Obama tapped Mr. Garland for the job. (That number is 51 and 
     counting.) But the Republican leadership isn't budging. 
     Charles Grassley, chair of the judiciary committee, admits 
     that leaving the appointment to the next president is a 
     ``gamble'' given that Donald Trump is now all-but certain to 
     be the Republican nominee, but he is sticking to his guns.
       What's wrong with eight justices? The primary worry is that 
     tie votes will sow legal confusion and uncertainty. When 
     justices are split down the middle, they cannot resolve rival 
     views on crucial national issues--from affirmative action and 
     public unions to gay rights, birth control and abortion. By 
     letting lower-court decisions stand but not requiring other 
     courts to abide by the ruling, the stage is set for odd 
     state-by-state or district-by-district distinctions when it 
     comes to the meaning of laws or the constitution. This seems 
     to be the worry that prompted the justices to search for a 
     compromise after hearing arguments in March in the latest 
     fight over Obamacare and contraception. One federal district 
     court has said that the contraceptive mandate violates a 1993 
     law banning the government from unduly interfering with other 
     people's religious scruples. A half dozen other appellate 
     courts have come to the opposite opinion. So if the justices 
     divide 4-4 in Zubik v Burwell, women across most of America 
     will have access to birth control through their employer's 
     health coverage, while women in seven midwestern states will 
     not. The justices' unprecedented effort to square the circle 
     by playing mediator does not look promising.
       Some legal scholars argue that an eight-justice bench isn't 
     so bad after all and might actually be preferable. Eric 
     Segall, a professor of law at Georgia State University, 
     thinks the 4-4 ideological divide is pushing justices to 
     moderate their claims in an effort to win votes from their 
     colleagues on the other side. ``[T]o accomplish their 
     goals'', Mr. Segall writes, ``the Justices would simply have 
     to get along better''. This is a prescription, he says, to 
     ``more public confidence in the final outcomes'' of Supreme 
     Court decisions. We may have seen just such a compromise at 
     work in a recent voting-rights decision, Evenwel v Abbott. 
     After the oral argument in December, most pundits (including 
     your correspondent) were expecting a 5-4 decision upending 
     the common understanding of ``one person, one vote'' 
     (counting everybody) in favour of counting only eligible 
     voters, a scheme favouring whiter, wealthier, GOP-leaning 
     districts. But the justices came out 8-0 in the other 
     direction. The four liberals seem to have attracted the 
     conservatives' votes (though Justices Samuel Alito and 
     Clarence Thomas disagreed with the reasoning) by lowering the 
     temperature a bit: the constitution permits states to use 
     total population as the basis for drawing districts, Justice 
     Ruth Bader Ginsburg wrote for her colleagues, but the 
     question of whether it requires them to do so is off the 
     table until a case forces it back on.
       But beyond the Evenwel surprise and the seemingly ill-fated 
     attempt to resolve the dicey dilemma in Zubik, it's very hard 
     to see how a denuded court is an appealing concept

[[Page 6121]]

     in the medium or long-term. A patchwork quilt of legal 
     realities may have been fitting for America under the 
     Articles of Confederation, before the country had a political 
     system that made it something approximating a union, but 
     America's constitutional design is not consonant with deep 
     confusion about what the law means on controversial questions 
     of public life. While the bind they're in may lead to 
     occasional compromises, the justices will only bend so far. 
     Whether the divide manifests as 4-4 splits or a tendency to 
     hear fewer cases in which those splits seem likely, a curbed 
     Supreme Court is not a court that can possibly live up to its 
     name.

                          ____________________