Statement of Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee, On Judicial Nominations

Nearly 150 years ago, Congress determined that a fully functioning Supreme Court should consist of nine justices.  For more than one hundred days, however, the Supreme Court has been unable to operate at full strength as a result of unprecedented obstruction by Senate Republicans.  Under Republican leadership, the Senate is on track to be in session for the fewest days since 1956.  Senate Republicans simply refuse to do their jobs.  And if Senate Republican leadership has its way, this seat on the Supreme Court will remain unnecessarily vacant for more than a year.

President Obama nominated Chief Judge Merrick Garland 70 days ago.  Based on the timing of the Senate’s consideration of Supreme Court nominees over the past four decades, Chief Judge Garland should be receiving a confirmation vote on the Senate floor today.  Instead, Republican Senators are discussing a hypothetical list of nominees issued by their presumptive nominee for president. 

Senate Republicans should be responsible enough to address the real vacancy on the Supreme Court that is right now keeping the Court from operating at full strength.  Chief Judge Garland has received bipartisan support in the past and there is no reason other than partisan politics to deny him the same process the Senate has provided Supreme Court nominees for the last 100 years.  The Chairman of the Judiciary Committee recently suggested we put down on paper how the Senate treats Supreme Court nominees.  I did just that with Senator Hatch in 2001 when we memorialized the longstanding Judiciary Committee practice that Supreme Court nominees receive a hearing and a vote, even in instances when a majority of the Judiciary Committee did not support the nominee.  The Chairman and all Republicans should go back to that letter to use as a roadmap for considering Chief Judge Garland’s nomination now.

Republicans have been dismissive about the need for a fully functioning Supreme Court with nine justices.  But as we have already seen this term, the Supreme Court has been repeatedly unable to serve its highest function under our Constitution.  Without a full bench of justices, the Court has deadlocked and has been unable to address circuit court conflicts or resolve cases on the merits.  The effect, as The New York Times reported recently, is a “diminished” Supreme Court.  In a bid to appeal to moneyed interest groups, Republicans have weakened our highest court in the land – both functionally and symbolically.

In the face of this obstruction, some Supreme Court justices have tried to put on a brave face, proclaiming things are going along just fine.  The facts show, however, that the opposite is true.  As another recent news article notes, the Supreme Court is on pace to take on the lightest caseload in at least 70 years.  At least one Supreme Court expert has suggested that the eight justices currently serving may be reluctant to take on certain cases when they cannot be certain they will reach an actual decision on the merits without deadlocking.  As each week passes, and we see the Court take a pass on taking additional cases, the problem gets worse and the Court is further diminished.

In some instances, the Court has issued rare and unprecedented follow up orders to try to reach some kind of compromise where they otherwise cannot resolve the issue with eight justices.  This happened in Zubik v. Burwell, which involved religiously-affiliated employers’ objections to their employees’ health insurance coverage for contraception.  In that case, the Court took the unusual step of ordering supplemental briefing in the case, seemingly to avoid a 4-4 split, and to reach some kind of compromise.  Even with the extra briefing, the Court could not make a decision.  Instead, it sent the issue back to the lower courts expressing “no view on the merits of the cases.”  The reason we have one Supreme Court is so it can issue final decisions on the merits after the lower courts have been unable to do so in a consistent fashion.  But the Supreme Court has recently punted cases back down to the lower courts for them to resolve the issue, possibly in different ways, because of its diminished stature.  A Supreme Court that cannot resolve disputes among the appellate courts cannot live up to its name.

The Court has been unable to resolve cases where even the most fundamental right is at stake – that of life and death.  Former Judge Timothy K. Lewis of the Third Circuit Court of Appeals warned us of this earlier this month when he spoke at a public meeting to discuss the qualifications of Chief Judge Garland.  Sadly, these warnings have become a reality.  In one death row case, the Supreme Court has not yet decided whether to review it despite the fact that at trial, an expert testified that the defendant was more likely to be dangerous in the future because of his race.  Texas The prosecution later conceded this testimony was inappropriate, but continued to raise procedural defenses in Buck’s case.  Such a case about whether a person sentenced to death has received due process is at the very heart of our democracy.  And yet, our diminished Supreme Court has been unable to make a decision in this case and could deadlock on others.

There are some who suggest a deadlocked decision may be beneficial when one supports the lower court’s ruling.  But that is both short-sighted and contrary to role of the courts in our constitutional system.  A deadlocked decision postpones an actual decision from the final arbiter of law under our Constitution.  This results in less certainty for all of us. 

I hope that Republicans will soon reverse course and put aside their obstruction to move forward on Chief Judge Garland’s nomination to be the next Supreme Court Justice.  Their failure to act is having a real impact on the American people.  It is up to the Republican majority to allow this body to fulfill one of its most solemn duties and ensure that justice is not delayed for another year.  Judge Garland deserves fairness.  He should be given a public hearing and a vote without further delay. 

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