Statement of Senator Patrick Leahy On the Supreme Court, Emergency Funding for Zika, and Judicial Nominations

Statement of Senator Patrick Leahy (D-Vt.),
Ranking Member, Senate Judiciary Committee,
On the Supreme Court, Emergency Funding for Zika, and Judicial Nominations

June 27, 2016

This morning, the Supreme Court in Whole Woman’s Health v. Hellerstedt reaffirmed that women – not politicians – should make their own health care choices. This was an important decision for women’s health and women’s constitutional rights. But the fight to protect women’s health continues. And it continues tomorrow here in the Senate when we take the first vote on the conference report to provide emergency funding to combat the Zika virus.

We are voting on emergency funding. From flooding in the South to wildfires in the West, from ice storms in the winter to hurricanes in the summer, Congress has always responded to crises with emergency funds. No offsets were required. Now, despite the overwhelming need for funding to fight Zika; when the threat of Zika is real and here; when the threat is of great risk to pregnant women; when the World Health Organization is urging women in Zika-impacted areas to delay pregnancy – House and Senate Republicans want to cut other programs to offset emergency funding for Zika.

House and Senate Republicans decided on a conference report that continues their attacks on women’s health. The report restricts Zika emergency funding for family planning services – limitations that will prevent some women from seeking health services from their own doctors or from primary care clinics that help serve women in rural areas, including in Puerto Rico where there are already thousands of Zika cases. Just after the Supreme Court reaffirmed a woman’s right to make her own health care decisions, Republicans want to take that away. It should come as no surprise to anyone tomorrow when I vote against this needlessly limiting response to what is a public health crisis.

Republicans’ misguided leadership extends to the vacancy on the Supreme Court. The high cost of their obstruction was on full display last week when the Court’s eight justices deadlocked twice in one day. Since February, the diminished Court has been unable to issue a final decision on the merits in a total of seven cases. The Supreme Court’s inability to serve its highest function under the Constitution has left millions of families across the country waiting for justice and uncertain of the law. This is the devastating reality for vulnerable immigrant families who are wondering whether they will be torn apart after the Court deadlocked last week in a case concerning enforcement of the President’s executive action on immigration.

The immigration case demonstrates the real harm of Republican obstruction. Three years ago today, after an extensive process in the Judiciary Committee where hundreds of amendments were debated, the Democratic-led Senate passed a comprehensive immigration reform bill on a strong bipartisan vote of 68-32. Even though a majority of the House of Representatives would have passed that bill into law, the Republican Speaker of the House blocked that bill from receiving a vote. Because the Speaker refused to act, the President was forced to. His executive action deferred the deportation of parents and children to prioritize the deportation of dangerous criminals. Before that executive action could be implemented, however, a Republican-appointed district court judge in Texas issued a nation-wide injunction blocking the order.

It was the inaction of Republicans in Congress that led the President to take sensible action to improve our broken immigration system. After blocking immigration reform, Republican obstruction continued in the Senate with their unprecedented refusal to consider the nomination of Chief Judge Merrick Garland for the Supreme Court. This left a hobbled Court of eight to consider this crucial immigration case. From legislation to the executive action to the hobbled Court, Republicans are responsible for creating these crisis points.

Now that the Supreme Court has finished its term, we can see the full scope of the damage caused by Republicans obstruction. In addition to the non-decision in the immigration case, there have been six other cases where the Court could not reach a final decision on the merits. We still do not know whether lenders can discriminate against married women; whether consumers can sue companies for misuse of private information; whether employers can deny women employees access to contraception coverage; whether public-sector unions can recover fair-share costs for collective bargaining; whether a person can sue another state; or whether tribal courts can hold non tribal wrongdoers on tribal landscivilly liable. These are important questions, and the American people should have definitive answers. Our Constitution ensures equal justice for all; not a patchwork of different rights in different parts of the country. This is the result of Senate Republicans’ refusal to do their job and provide a hearing and a vote on Chief Judge Garland.

Chief Judge Garland is an outstanding nominee for the Supreme Court and Americans overwhelmingly want him to receive a public hearing. The American Bar Association formally weighed in last week announcing that it had reviewed Chief Judge Garland’s nomination, and unanimously awarded him its highest rating of “Well-Qualified.” To reach that rating, lawyers from across the country assessed his integrity, professional competence, and temperament. One said “Garland is the best that there is. He is the finest judge I have ever met.” Another said “He is a judge’s judge, with a very high standard and legal craftsmanship, a fine sense of fairness to all parties, a measured and dignified judicial temperament, and the highest respect for law and reasoned argument.” One even said that Chief Judge Garland “may be the perfect human being.”

Instead of scheduling a hearing for this impeccably qualified nominee, Republicans are holding Chief Judge Garland’s nomination hostage in their hopes that the Republican Party’s presumptive presidential nominee can make a different nomination. This is the same candidate who has accused a sitting Federal judge of bias simply because of his heritage. It is unfathomable to me that Senate Republicans would prefer to diminish the Supreme Court for two terms rather than give Chief Judge Garland a fair and public hearing. But that is exactly what they are doing.

Senate Republicans are also failing to fulfill their constitutional responsibility to our district and circuit courts. In the 18 months that Senate Republicans have had a majority, they have allowed just 20 votes on judicial nominations – to disastrous results on our Federal courts as judicial vacancies have skyrocketed. Contrast this record to the last two years of George W. Bush’s administration, when Democrats were in control. During that time, Democrats confirmed 68 of President Bush’s judicial nominees and reduced the number of judicial vacancies to 34. Today, however, Senate Republicans’ obstruction has caused judicial vacancies to nearly double from 43 to 83. Of these, 30 have been designated as judicial emergencies where caseloads are unmanageably high and the administration of justice is strained. When you look at the facts, Senate Republicans’ claim that they have treated the President’s judicial nominees fairly is not supported by the evidence. But more importantly, their persistent and unprecedented obstruction is harmful to the American people who are finding justice delayed in our Federal courts.

The nominee the Senate will finally vote on today, Robert Rossiter, is just one example of Republican obstruction. He was nominated over a year ago to fill a judicial emergency vacancy on the United States District Court for the District of Nebraska. Despite his nomination being voice voted out by the Judiciary Committee last October, Mr. Rossiter has been awaiting a floor vote for almost 250 days. Robert Rossiter has been in private practice in Nebraska for over 30 years. He has tried more than 70 cases to verdict. I will vote to support his nomination.

Even after today’s vote, there will be 25 judicial nominations languishing on the Senate floor. Two of them were reported at the same time as Robert Rossiter and have also been awaiting a vote for eight months. While there is an agreement to vote on the nomination of Judge Brian Martinotti to fill a vacancy in New Jersey, that vote will not happen until next month. And we do not have an agreement to vote on the nomination of Edward Stanton to the Western District of Tennessee. In 2010, the Senate voted unanimously to confirm Mr. Stanton as the United States Attorney for that district, and his current nomination is supported by his two Republican home state Senators, as well as by every Republican on the Judiciary Committee. Only because of the efforts of Senator Fischer is Mr. Rossiter’s nomination receiving a vote today. I hope the Republican Senators of Tennessee will be able to persuade the Majority Leader to schedule a vote for Mr. Stanton’s nomination before we leave for the July recess.

Instead of voting on these nominees, and instead of holding a hearing on Chief Judge Garland’s nomination, Senate Republicans are already talking about shutting down the confirmation process for judicial nominees next month. This is wrong. Hardworking Americans put in long hours to get their jobs done, and they deserve a Senate that does the same. But Senate Republicans have ignored their constitutional responsibilities and continued as their party’s standard bearer has said to “delay, delay, delay.”

It is the Senate’s duty to ensure that our independent judiciary can function. Based on the deadlocks and delays we have seen, it is clear that Senate Republicans are not acting responsibly. Senate Republicans must act on Chief Judge Garland’s nomination, as well as the 25 judicial nominations that are languishing on the Senate floor.

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