Statement On the Supreme Court Nomination of Chief Judge Merrick Garland

Statement of Senator Patrick Leahy (D-Vt.),
Ranking Member, Senate Judiciary Committee,
On the Supreme Court Nomination of Chief Judge Merrick Garland

September 27, 2016

Eleven years ago this week, following the death of Chief Justice Rehnquist, the Senate confirmed Chief Justice John Roberts to the Supreme Court. After his Judiciary Committee hearing in September, he was given full and fair consideration by the Senate and confirmed about two weeks later on September 29. This ensured that the Supreme Court was not missing a justice when it began its term on the first Monday in October. The Senate acted responsibly eleven years ago when a Republican was in the White House. But not today. Under Republican leadership, the Senate is deliberately leaving the Supreme Court short-handed.

Chief Judge Merrick Garland deserves the same consideration that Chief Justice Roberts received eleven years ago. Like Chief Justice Roberts, Chief Judge Garland is eminently qualified. Like Chief Justice Roberts, he hails from the Midwest, and is a D.C. Circuit Court judge who has earned the respect and admiration of those who have worked with him. Yet unlike Chief Justice Roberts, who was confirmed in about two months, Chief Judge Garland has been pending before the Senate for more than six months. That is longer than any Supreme Court nominee in history. No hearing. No vote. No consideration at all by the Senate.

Our independent judicial branch is fundamental to our constitutional system of government. The Senate’s duty to consider judicial nominations under the Constitution is not a political game. This Republican obstruction has consequences for all Americans. Because Senate Republicans refuse to do their jobs, the Supreme Court has been repeatedly unable to uphold its essential constitutional role as the final arbiter of the law. The uncertainty in the law has been harmful to businesses, law enforcement, and to families and children across the country.

This term, the Supreme Court will consider cases that will impact our voting rights, our religious rights, our access to fair housing, and even the ATM fees we pay. The Court may also decide to hear important cases on the rights of transgender students to be treated equally, environmental protection and climate change, women’s reproductive health, and money in politics. The Supreme Court needs to be at full strength to provide the American people certainty and clarity of our rights under the Constitution.

The same Republicans who expedited consideration of Chief Justice Roberts have since February used the excuse of the “election year” to justify their prolonged obstruction. Yet, there is no election year exception in the Constitution for the President’s duty to nominate Supreme Court justices. And there is no election year exception in the Constitution to excuse Senators from providing advice and consent on those nominations. And there is no election year exception in the Constitution for the Supreme Court’s role as final arbiter of the law. Our history proves that this is the case: the Senate has confirmed Supreme Court nominees in election years more than a dozen times.

Most recently, Justice Kennedy was confirmed by a Democratic-led Senate during President Reagan’s final year in office, a presidential election year. It took a Democratic Senate just 65 days to confirm Justice Kennedy. President Obama’s nominee, Chief Judge Garland, has been pending in the Senate with no action for 195 days.

The Judiciary Committee plays an important role in the examination of Supreme Court nominees, reviewing the nominee’s records and holding public hearings so that the American people can hear from that individual. Ever since the Judiciary Committee started holding public confirmation hearings of Supreme Court nominees more than a century ago, the Senate has never denied a Supreme Court nominee a hearing and a vote. The current Republican leadership has broken with this century of practice to make its own shameful history.

Even when a majority of the Committee has not supported a Supreme Court nominee, the Committee has still sent the nomination to the floor so that all 100 Senators can fulfill their constitutional role of providing advice and consent on Supreme Court nominees. 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 in a letter this agreement regarding President Bush’s Supreme Court nominees. I ask unanimous consent that a copy of this letter be included in the Record.

This is an important point. Senators are free to make their own decision to vote against a Supreme Court nominee, but that does not justify the complete refusal to provide any process whatsoever. I have heard the other side offer the example of some Republican Senators pledging to vote “no” on Justice Fortas’ nomination to replace Chief Justice Warren in an election year as justification for their obstruction today. That example does little to prove their point. In 1968, there was no current vacancy on the Court, as Chief Justice Warren’s resignation was conditional upon the confirmation of his successor. That meant that there was never any fear that the Supreme Court would be operating at less than full strength. Just as importantly, public hearings went forward and the full Senate was able to consider the nomination. Everett Dirksen, the Republican Leader who also served as the Ranking Member of the Judiciary Committee at the time, did not sign on to that pledge and proceeded to work with the Chair of the Committee to move forward with hearings.

We worked across the aisle to ensure that the Supreme Court would be fully functioning with Chief Justice Roberts’s nomination 11 years ago. Thirty years ago the Senate voted to confirm both Justice Scalia and Chief Justice Rehnquist. More than a dozen Supreme Court justices have been confirmed in the month of September. That is not surprising given that the Supreme Court begins its terms on the first Monday in October.

Chief Judge Garland should have been confirmed by Memorial Day. We have had more than six months to examine his record, and it is not as if the Senate has been consumed with considering other nominees. The last time we confirmed a single judicial nominee was on July 6th. Republicans refuse to allow votes even on uncontroversial district court nominees that have been pending more than a year. Our independent Federal judiciary is suffering as a result of this unprecedented obstruction. It is long past time for the Senate to do its job. We must treat our co-equal branch of government with respect.

There is no reason why the Senate should not do its job in an election year. There is much work left to be done and Senate Republicans are calling for yet another long recess. The resolution introduced today by the senior Senator from Connecticut would keep the Senate here to do its job for Chief Judge Garland’s nomination. It should not require a resolution to keep us accountable to the oath we all swore to uphold the Constitution. The Senate Majority Leader must let us get to work for the American people. We should immediately consider Chief Judge Garland for the Supreme Court of the United States. Our highest court should not be diminished any further by Republican obstruction here in the Senate.

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