Statement of Senator Patrick Leahy On Judicial Nominations

Statement of Senator Patrick Leahy (D-Vt.),
Ranking Member, Senate Judiciary Committee,
On Judicial Nominations
September 6, 2016

Throughout August, I heard from Vermonters all around my home state about the issues that are important to them.  Whether it was at scheduled events or just in conversations around town, Vermonters asked me about the Supreme Court – and why the Senate has failed to act on the nomination of Chief Judge Merrick Garland.

The Senate is returning from the longest recess in nearly half a century, and perhaps the Republican leadership was hoping that Americans had forgotten about the unprecedented obstruction of a Supreme Court nominee.  But I can assure you that Americans – and certainly Vermonters – have not forgotten.  They have not forgotten that Senate Republicans have refused to hold a hearing for Chief Judge Garland.  They have not forgotten that some Senators still have not even afforded Chief Judge Garland the courtesy of a meeting.  And they have not forgotten that the Supreme Court continues to be hindered by the lack of a full bench of justices.

Chief Judge Garland’s nomination has been blocked by Republicans in the Senate for an unprecedented 174 days.  Nearly half a year has passed since President Obama nominated Chief Judge Garland to the Supreme Court after Justice Scalia’s untimely death – and Senate Republicans have done nothing about it.  The Senate should get to work and fulfill its constitutional duty of providing advice and consent on the nomination, to ensure we have a fully functioning Supreme Court.  Instead, over the recess, the Majority Leader bragged that one of his “proudest moments” was when he unilaterally declared that he would not allow the Supreme Court vacancy to be filled by President Obama.  Such cynical rhetoric is beyond disappointing.  The partisan decision to refuse any sort of consideration of a highly-qualified nominee like Chief Judge Garland is an embarrassment; it is hardly an accomplishment of which to be proud. 

We must all be reminded that this stubborn refusal to consider Chief Judge Garland has real world consequences that go beyond politics.  The Republican obstruction of Chief Judge Garland has diminished the Supreme Court and impacted millions of families across the country.  This summer when the Supreme Court completed its most recent term, the damage became clear.  In seven separate cases, the eight justices could not serve as the final arbiter of law when they were unable to issue a final decision on the merits.  In another case involving a death penalty appeal – a matter of life and death – the Court also deadlocked.  And just last week, the Court deadlocked on consideration of an election law case that will impact the constitutional rights of millions of voters ahead of this year’s election.  

Yet Senate Republicans continue their blockade.  For months, in poll after poll, two-thirds of the American people want a public hearing for Chief Judge Garland.  Instead, Republicans are doing all they can to block Chief Judge Garland in the hope that their party’s presidential nominee wins in November.  It is disappointing that they continue to hold our highest court hostage in support of an intemperate political candidate who has demonstrated contempt for the rule of law.  

The Republican nominee for president is a man who opposes the bedrock principle of freedom of the press.  He is a man who attacked a Federal judge based on his race and heritage.  He is a man who repeatedly attacked the gold star parents of a brave, selfless Army captain who was killed in Iraq while protecting his fellow soldiers.  Despite these and several additional other episodes demonstrating that the Republican nominee represents an unacceptable risk to our country, Senate Republicans continue to block Chief Judge Garland in the hope that their nominee is elected and can appoint judges. 

The Republican obstruction and disregard for a co-equal branch of government also extends to the lower Federal courts.  Since taking over the majority last year, Senate Republican inaction has allowed judicial vacancies to more than double and to reach 90 vacancies.  This amounts to more than 10% of the Federal bench.  Vacancies have reached what the Congressional Research Service calls “historically high” levels.  The American people are left waiting for justice as the number of vacant seats pile up.  Yet the Republican Leadership refuses to allow a vote on any of the 27 judicial nominees pending on the Executive Calendar.  These nominees are the result of the President working with home state Senators – Republicans and Democrats – to make a nomination.  And each of these nominees was voted out of the Judiciary Committee with bipartisan support.  

For example, the next Federal district court nominee ready for a vote is Edward Stanton from Tennessee.  Mr. Stanton is the U.S. Attorney for the Western District of Tennessee.  He has the support of both of his Republican home state senators and was voice voted out of the Judiciary Committee.  Yet this excellent nominee, who has been serving the people of Tennessee as one of the state’s top Federal prosecutors, has been languishing on the floor since last October.  I think both Senators from Tennessee will agree with me that there is no good reason why Mr. Stanton should have waited this long for an up-or-down vote.

In 2008, when George W. Bush was president and I was chairman of the Judiciary Committee, this treatment of Mr. Stanton would not have happened.  All Senators, whether Republican or Democratic, actually worked together to fill these lower court vacancies.  In September 2008, we confirmed 10 judicial nominees in one day, and not a single nominee was left on the Executive Calendar.  Of those 10 nominees, nine had support from home state Republican Senators.  I was proud to work with Senators Arlen Specter, Pat Roberts, Sam Brownback, John Warner, Mel Martinez, Wayne Allard, Bob Bennett, and Orrin Hatch to confirm nominees to fill vacancies in their states, and help ensure that the people of those states had access to justice in our Federal courts.

Today, 13 judicial nominees from states represented by 16 Republican Senators are ready for confirmation votes.  These nominees have been waiting two, three, even 10 months for a simple vote.  I hope that these 16 Republican Senators are able to impress upon their leadership just how important it is to allow the Senate to do its job and vote on these nominees that would serve their States.  

I also hope that the Republican leadership will reconsider its outright refusal to allow a hearing and vote for Chief Judge Garland’s nomination to the Supreme Court.  This unprecedented and unwarranted stance has already undermined one term of the high court, but there is still time to avoid harming another term.  There is plenty of time to have a hearing and vote on Chief Judge Garland’s nomination.  It’s time for the Senate to get back to work.

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