(Senate - May 25, 2016)

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[Congressional Record Volume 162, Number 83 (Wednesday, May 25, 2016)]
[Pages S3167-S3168]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, nearly 150 years ago, Congress determined 
that a fully functioning Supreme Court should consist of nine Justices. 
For more than 100 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. 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 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 
  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. 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; 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 

[[Page S3168]]

one supports the lower court's ruling, but that is both shortsighted 
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.