[Congressional Record (Bound Edition), Volume 163 (2017), Part 4]
[Senate]
[Pages 5152-5153]
[From the U.S. Government Publishing Office, www.gpo.gov]




         MERRICK GARLAND AND FILLING THE SUPREME COURT VACANCY

  Mr. CARPER. Mr. President, I rise today to lend my voice in support 
of perhaps one of the most qualified individuals ever nominated to the 
U.S. Supreme Court. I am referring, of course, to Chief Judge Merrick 
Garland.
  Over 1 year ago, on March 16, 2016, a President who was twice elected 
by significant margins in both the popular vote and the electoral 
college nominated Judge Garland to fill the vacancy left by the death 
of Justice Antonin Scalia. President Obama upheld his constitutional 
duty by submitting a name to the Senate to fill this vacancy.
  By submitting the name of Merrick Garland, he gave the Senate a man 
who has spent his career working to build consensus and to find 
principled compromises. His impeccable credentials speak for 
themselves: Harvard undergrad, top of his class; Harvard Law, top of 
his class; law clerk to Judge Friendly on the Second Circuit and 
Justice Brennan on the Supreme Court. He served in the Justice 
Department after a time in private practice.
  When tragedy befell Oklahoma City in April of 1995, Merrick Garland 
led the investigation that brought justice to the perpetrators of that 
unthinkable act of terrorism. Judge Gorsuch called this work ``The most 
important thing I have ever done in my life.''
  His career was far from over at that point. In 1997, Republicans and 
Democrats joined together to confirm Judge Garland to the DC Circuit 
Court of Appeals, which is often called the ``second highest court in 
the land.''
  Here is what Senator Orrin Hatch, former chairman of the Senate 
Judiciary Committee and currently the President pro tempore of the 
Senate, said of him at the time:

       Merrick B. Garland is highly qualified to sit on the DC 
     Circuit. His intelligence and his scholarship cannot be 
     questioned. . . . His legal experience is equally impressive. 
     . . . Accordingly, I believe Mr. Garland is a fine nominee. I 
     know him personally, I know of his integrity, I know of his 
     legal ability, I know of his honesty, I know of his acumen, 
     and he belongs on the court.

  Those are not my words. Those are the words of Senator Orrin Hatch, a 
good friend and colleague.
  Over the past two decades on the DC Circuit Court of Appeals, Judge 
Garland established a reputation as a thoughtful judge, a fair judge, a 
man of high integrity, a judicial moderate, and a consensus builder in 
a day and age when we need consensus builders--not here but on the 
Supreme Court and other courts.
  Even those who may disagree with him tend to find themselves thinking 
a little harder about their own views after hearing his.
  During his 2005 confirmation hearing to serve as Chief Justice, John 
Roberts, who served with Judge Garland on the DC Circuit, stated these 
words: ``Any time Judge Garland disagrees, you know you're in a 
difficult area.''
  Thank you, Chief Justice Roberts.
  In 2013, Judge Garland was promoted to chief judge on the DC Circuit 
Court of Appeals, the second highest court in the land--the chief 
judge, presiding over that court.
  When President Obama nominated him to the Supreme Court over 1 year 
ago, Judge Garland brought with him more Federal judicial experience 
than any nominee in the history of the United States.
  When I met with Judge Garland last year, I got to know him beyond 
just his resume. Ironically, he had actually performed the marriage 
ceremony for my former chief of staff and his bride several years ago.
  I was struck by Judge Garland's humility and by his personal 
character, his personal traits. Even as a nominee for the Supreme 
Court, he continued to serve his community as a mentor to elementary 
school students right here in Washington, DC. Imagine that. A chief 
judge of the DC Circuit Court of Appeals taking time every week to 
mentor some kid who needs another good role model in his or her life. 
That is something that Judge Garland has done for about two decades.
  Over 1 year later, as I stand here today, a seat on the Supreme 
Court--what should be, in my view, Judge Garland's seat--remains 
vacant. Our Republican colleagues, in an unprecedented display of what 
I think is obstructionism and partisanship, denied Judge Garland a 
hearing and a vote. Many of our Republican colleagues refused to even 
meet with him. He was denied both a hearing in the Judiciary Committee 
and a cloture vote in the full Senate.
  Well, since the Senate Judiciary Committee began holding public 
hearings on Supreme Court nominees 101 years ago, in 1916, no Supreme 
Court nominee had ever been denied a hearing and a vote.
  I will say that again. No Supreme Court nominee had ever been denied 
a hearing and a vote--well, until Judge Garland.
  According to the highly respected website, SCOTUSblog, we read these 
words:

       The historical record does not reveal any instances since 
     at least 1900 of the president failing to nominate and/or the 
     Senate failing to confirm a nominee in a presidential 
     election year because of the impending election.

  That is right off the blog.
  Judge Garland was denied a hearing and a vote. In fact, during the 
1988 Presidential election year, Justice Anthony Kennedy was confirmed 
by the Senate 97 to 0--not 51 to 49, not 60 to 40, but 97 to 0. But 
Judge Garland was denied a hearing and a vote.
  Our Constitution, the one that every Member of this great 
deliberative body has sworn an oath to uphold, standing right over 
there, requires the Senate to provide its advice and consent to Supreme 
Court nominees.
  Over the years, there have been a lot of questions as to what advice 
and consent entails. Judge Garland was denied a hearing and a vote. A 
good man--I think an extraordinary man--was treated badly, as was our 
Constitution.
  I believe the unprecedented obstruction our Republican colleagues 
mounted last year against Judge Garland was a shameful chapter for the 
U.S. Senate. Mr. Garland, a consensus builder, one of the most 
qualified judges in our country, waited 293 days for a hearing and a 
vote that ultimately never came. I am still deeply troubled by those 
293 wasted days, and I am still deeply troubled by the way Judge 
Garland was treated. I believe Judge Garland still deserves a hearing 
and still deserves a vote.
  While I do not believe that two wrongs make a right, I believe this 
may be our only opportunity to right a wrong and erase the enormous 
black mark that the Senate's failure to consider Judge Garland leaves 
on this chapter of American history. I think it is unacceptable to put 
partisan politics over fidelity to our U.S. Constitution. Confirming 
anyone for this vacancy other than Judge Garland would be a stamp of 
approval for playing politics with Supreme Court nominees.
  From where I sit, upholding our oath to protect the Constitution 
means finding agreement on moving Judge Garland's nomination forward at 
the same time as that of Judge Neil Gorsuch, President Trump's nominee. 
When President Trump lost the popular vote by nearly 3 million votes 
last year and narrowly won the electoral college, he promised to be a 
President for all Americans. I think a fair question is, Has he upheld 
that promise?

[[Page 5153]]

  Well, let's decide--an unconstitutional Muslim ban, an unnecessary 
and overpriced wall on the southern border, a failed healthcare bill 
that would have provided less coverage for more money, a rollback of 
environmental protections for all of us who don't want to drink dirty 
water and don't want to breathe dirty air. If you ask me, the President 
has broken the promise to be a President for all Americans. Now I 
realize that others may differ and disagree, but his nomination of 
Judge Gorsuch represents what I believe is another broken promise.
  I have heard from middle-class folks, from workers up and down my 
State, from special education teachers, from immigrant communities, 
from women who depend on access to healthcare, and my guess is my 
colleagues have as well. Many of them fear that Judge Gorsuch is not on 
their side. Despite his impressive resume, I share those same concerns.
  At this time, I believe it is appropriate to hit the pause button 
until an agreement can be reached that provides justice for Judge 
Garland while restoring credibility to the U.S. Senate. I believe that 
is only bolstered by the cloud that lingers over President Trump's 
campaign.
  As FBI Director Comey testified last week, there is an ongoing 
investigation to determine the links between Russia and the Trump 
campaign and whether there was any coordination between the Trump 
campaign and Russia to interfere in the 2016 election. It has also been 
widely reported in the media that officials from the upper echelon of 
the Trump campaign have close ties to Vladimir Putin's interests in 
weakening democratic governments throughout the West. There are many 
Americans who believe that Judge Gorsuch has been nominated for a 
stolen Supreme Court seat. There are also a number of Americans who 
believe that he has been nominated by a man whose campaign may have 
coordinated with foreign adversaries on stealing a Presidential 
election.
  Let me be clear. At the moment, no evidence has been made public to 
indicate that this is the case, but there are few nominations that any 
President will make that will have more of an impact on our 
Constitution and on the lives of everyday Americans than the U.S. 
Supreme Court. To hastily move forward with Judge Gorsuch, who is 49 
years old and can serve on the Supreme Court well into the middle of 
this century, without first getting to the bottom of the suspicious and 
irregular actions of the Trump campaign officials, I believe, would be 
a mistake.
  The American people need to know that the President's campaign was 
above reproach before we decide whether Judge Gorsuch merits approval 
for a lifetime appointment.
  I will close my remarks by offering a word of caution to my 
colleagues. We have maintained and preserved a 60-vote threshold for 
Supreme Court nominees to prevent Democrats and Republicans from 
choosing political expediency over bipartisan consensus. If Judge 
Gorsuch fails to obtain 60 votes on the cloture vote next week, I think 
it could signal one of three things. First, that Judge Gorsuch's views 
are outside the judicial mainstream; second, that we still have an 
opportunity to rectify the injustice done to Judge Garland and to our 
Constitution; or third, that we still do not know the nature of the 
relationship between the Trump campaign and Russia--a country whose 
leadership has ordered an attack on our election and our democracy, as 
well as a whole lot of other countries around the world.
  If Judge Gorsuch fails to achieve 60 votes on the first try or the 
next try, it does not mean that his nomination will not move forward at 
some point in the future. It means we have hit the pause button. It may 
very well be that while we pause, another vacancy on the Court could 
emerge. Who knows when another vacancy might occur? But if you ask me, 
another vacancy might present the Senate with an opportunity to right 
what I believe is a historic wrong, and we should see if the other 
objections that have been raised about Judge Gorsuch could be addressed 
before we change the rules of the Senate in favor of the party in 
power.
  In closing, I will say again that Judge Garland waited 293 days for a 
hearing and a vote that never came. Judge Gorsuch waited 48 days for a 
hearing, and we will be voting on his nomination next week. Talk about 
a rush to judgment.
  The PRESIDING OFFICER (Mr. Young). The Senator's time has expired.
  Mr. CARPER. I would ask the Presiding Officer for 15 seconds, please.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARPER. Talk about a rush to judgment. We have time. The American 
people are watching us, and history will judge us. Let's make sure we 
get this right.
  Let's make sure we get this right.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.

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