Nomination of Merrick Garlandby Senator Patrick J. Leahy
Posted on 2016-04-27
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 [[Page S2488]] 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 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.