[Congressional Record Volume 162, Number 178 (Friday, December 9, 2016)]
[Senate]
[Pages S7011-S7014]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF MERRICK GARLAND

  Mr. LEAHY. Mr. President, I have served in this Chamber for 42 years 
and served as chairman or ranking member of the Judiciary Committee for 
nearly two decades. I have seen a lot of debates, even contentious 
ones, and good-faith disagreements between Senators. But what Senate 
Republicans did this year to shut down Chief Judge Merrick Garland's 
nomination to the Supreme Court--well, it might be the most outrageous 
act of obstruction and irresponsibility that I have seen in my entire 
time in the Senate. It is a dangerous step toward politicizing our 
highest Court, in a judicial system that long has been the envy of the 
world.
  Now that there is a Republican President about to be sworn in, I 
predict that all of a sudden we will hear Republicans talking about the 
importance of the Supreme Court having its full nine Justices. But make 
no mistake, these will be the same Senators who turned their backs on 
the Court and the American people for nearly a year by refusing to fill 
the vacancy since February.
  Senate Republicans cared more about preserving that vacancy for a 
Republican president than they did about an independent Supreme Court. 
The result was that they blocked one of the most qualified Supreme 
Court nominees in this Nation's history. Chief Judge Garland is an 
exceptional jurist with a stellar record and impeccable credentials. He 
has the most Federal judicial experience of any Supreme Court nominee 
ever. Republicans and Democrats alike have recognized Chief Judge 
Garland as a brilliant and impartial judge with unwavering fidelity to 
the rule of law. In this day and age, he was as much of a consensus 
Supreme Court nominee as one could find. The senior Republican Senator 
from Utah and former chairman of the Judiciary Committee has previously 
noted that he would be confirmed easily. It is not hard to see why 
Chief Judge Garland has received significant bipartisan support in the 
past. When the American Bar Association reviewed his nomination, it 
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.''
  And yet Republicans have refused to provide him with any process 
whatsoever--no hearing, no vote. The result is that Chief Judge Garland 
is now the longest pending Supreme Court nominee in history. No Supreme 
Court nominee has ever been treated this way. Republicans set a new 
standard this year. It is the American people who have been harmed and 
spurned by this unprecedented blockade.
  Until this year, Senate Judiciary Committee members had always taken 
their responsibility seriously. 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.
  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 longstanding tradition regarding Supreme 
Court nominees. The current Republican leadership has broken with this 
century of practice to make its own shameful history. But Senate 
Republicans have spent 8 years insisting on a different set of rules 
for President Obama.
  Republicans rolled the dice this year, subjecting the Supreme Court 
and the American people to their purely political gamble. They will 
tell us they have won. But there is no victor--for their partisan game, 
this body, the Supreme

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Court, and the American people all suffered. As we go forward under the 
new President-elect, I urge those Republicans to think carefully about 
their own words about the voice of the American people. I remind those 
Republicans that, in last month's election, Secretary Clinton received 
over 2.5 million more votes from the American people than the 
President-elect. That is hardly a mandate for any Supreme Court nominee 
who would turn back the clock on the rights of women, LGBT Americans, 
or minorities; or a nominee who would undermine safety net programs 
like Social Security, Medicare and Medicaid, or the Civil Rights Act, 
the Fair Housing Act, or the Voting Rights Act.
  President Obama made the best possible choice for a Supreme Court 
nominee, and any other Supreme Court nominee will face a difficult 
comparison to Chief Judge Garland's experience, brilliance, integrity, 
and support from across the political spectrum. Chief Judge Garland is 
an honorable, decent man and a model of public service. What Senate 
Republicans have done to him is unfair and unwarranted, and it is an 
insult, not just to him, but to all Americans who expect all of us to 
do our jobs and uphold our oath to the Constitution.
  As the Republican leadership brings the 114th Congress to a close, 
they do so having established another record for inaction on judicial 
nominations. Despite the fact that there are dozens of qualified, 
consensus nominees pending on the Senate floor right now, we will 
finish this Congress having confirmed just 22 judicial nominees in 2 
years. That is the lowest number since Harry Truman was president. 
There are currently 30 judicial nominees awaiting a vote, all with the 
support of their home State Senators and bipartisan support from the 
Judiciary Committee. We have not had a single confirmation vote on a 
judicial nominee since July. Because the Republican leadership shutdown 
judicial confirmations, the number of judicial vacancies in our Federal 
courts will increase to over 100 for the first time in almost 6 years, 
a vacancy rate of nearly 12 percent. And of those, the number of 
judicial emergency vacancies will exceed 40.
  This did not happen overnight. It is the result of a sustained effort 
that the Republican leadership chose. If we had just followed regular 
order, like them majority leader promised time and again, all of these 
nominees would have been confirmed months ago. Republicans cannot claim 
that President Obama has not made enough nominations to solve this 
crisis. They cannot say that he has not worked with them to find 
consensus nominees. Of the nominees awaiting a vote, 13 have the 
support of either one or two home State Republican Senators, and 28 
were reported by voice vote.
  The majority leader has repeatedly come to the floor to justify his 
obstruction by claiming he has treated ``President Obama fairly with 
respect to his judicial nominations'' in comparison to President Bush. 
That is not even close to accurate. Even more to the point, our 
constitutional duty of advice and consent is not about comparing one 
President to another. It is to ensure our Federal courts have the 
judges they need in order to provide Americans the speedy justice the 
Constitution promises. And right now, that is not the case when one of 
every nine judgeships across the country is vacant. Currently, there 
are 13 judicial emergency vacancies in Texas alone.
  Compare the record of the Republican Senate today to that of Senate 
Democrats in 2008, when I was chairman of the Judiciary Committee 
during the last 2 years of the George W. Bush administration. Senate 
Democrats confirmed 68 judicial nominees, accounting for two-thirds of 
all of the judicial nominations President Bush made in those 2 years. 
In contrast, since last January when Republicans took the majority, 
they have confirmed just 22 judicial nominees-barely one-quarter of the 
nominations President Obama has made during this Congress. To reach 
parity with President Bush, this Senate would need to confirm an 
additional 31 nominees. We could make that happen right now by voting 
on the nominees currently pending on the Senate floor.
  During the final year of the Bush administration, Senate Democrats 
confirmed 28 circuit and district nominees, all of whom the Judiciary 
Committee reported to the floor that year. This year, Republicans have 
allowed confirmations of just nine circuit and district nominees, each 
of whom the Judiciary Committee reported last year. So the majority 
leader has failed to even begin this year's work on nominees.
  When the Senate operated under regular order, consensus nominees like 
the ones we have pending on the floor were confirmed before long 
recesses and at the end of the year. Instead, the Republicans' standard 
operating procedure has been to refuse votes on consensus nominees. At 
the end of 2009, they refused to vote on 10 judicial nominees. At the 
end of 2010 and again in 2011, they left 19 judicial nominees pending, 
almost all of whom were consensus nominees. At the end of 2012, they 
blocked votes on 11 judicial nominees pending. After blocking 10 
nominees at the end of 2013 and then 6 in 2014, Senate Republicans once 
again blocked 19 nominees at the end of last year. This year, they set 
a new record by leaving 30 judicial nominees pending. All 30 are 
qualified and have bipartisan support, and there is no good reason we 
should not have voted on them already or before we adjourn this month.
  The vacancy crisis has happened because 8 years ago, rather than 
adhering to regular order, Republican leadership granted the wishes of 
rightwing legal groups who lobbied them to engage in ``unprecedented'' 
obstruction of President Obama's nominees. They have proven again that 
pure partisanship matters more to them than ensuring our courts have 
the resources they need to uphold the rule of law and provide justice 
for all Americans. Republicans have set a new standard for judicial 
nominees: it involves confirming only 11 nominees per year, routinely 
holding nominees over in Committee, and routine cloture votes and roll 
call votes on every district nominee. That is the way to ensure the 
President-elect's nominees are treated as ``fairly'' as President 
Obama's nominees.
  In the President's second full month in office, Senate Republicans 
wrote to him, demanding that he consult with them on judicial 
nominations. The President did just that. His first nominee was David 
Hamilton of Indiana to the Seventh Circuit, a nomination made in 
consultation with, and with the support of the most senior Republican 
Senator, Richard Lugar. Senate Republicans nonetheless filibustered the 
nomination. These were the same Republicans who used to claim that the 
filibustering judicial nominations was unconstitutional.
  Since then, Senate Republicans have obstructed and delayed just about 
every circuit nominee of this President. They filibustered Robert 
Bacharach's nomination to the 10th Circuit, even though he had the 
support of his two home State Republican Senators. That was the first 
time a circuit nominee had been successfully filibustered after 
receiving bipartisan support in Committee. That filibuster meant that 
his confirmation was needlessly delayed for 8 months, after which he 
was confirmed unanimously.
  When George W. Bush was President, the average circuit nominee spent 
just 18 days waiting for a vote on the Senate floor. The average 
circuit nominee of President Obama's waited exactly 100 days longer 
than that. There is no good reason these nominees should have had to 
wait six and a half times as long for a vote.
  Senate Republicans delayed confirmation of Judge Patty Shwartz of New 
Jersey to the Third Circuit for 13 months. They delayed confirmation of 
Judge Richard Taranto to the Federal circuit for a full year. They 
delayed confirmation of Judge Albert Diaz of North Carolina to the 
Fourth Circuit for 11 months. They delayed confirmation of Judge Jane 
Stranch of Tennessee to the Sixth Circuit and Judge William Kayatta to 
the First Circuit for 10 months. They delayed confirmation of Judge Ray 
Lohier of New York to the Second Circuit for 7 months. They delayed 
confirmation of Judge Scott Matheson of Utah to the Tenth Circuit, 
Judge Felipe Restrepo of Pennsylvania to the Third Circuit, and Judge 
James Wynn, Jr., of North Carolina to the Fourth Circuit for 6 months. 
They delayed confirmation of Judge Andre Davis of Maryland to the 
Fourth Circuit, Judge Henry Floyd of South Carolina to the Fourth 
Circuit, Judge Stephanie Thacker of West Virginia to the Fourth 
Circuit, and Judge

[[Page S7013]]

Jacqueline Nguyen of California to the Ninth Circuit for 5 months. They 
delayed confirmation of Judge Adalberto Jordan of Florida to the 11th 
Circuit, Judge Beverly Martin of Georgia to the 11th Circuit, Judge 
Mary Murguia of Arizona to the Ninth Circuit, Judge Bernice Donald of 
Tennessee to the Sixth Circuit, Judge Barbara Keenan of Virginia to the 
Fourth Circuit, Judge Thomas Vanaskie of Pennsylvania to the Third 
Circuit, Judge Joseph Greenaway of New Jersey to the Third Circuit, 
Judge Denny Chin of New York to the Second Circuit, Judge Chris Droney 
of Connecticut to the Second Circuit, Judge David Barron of 
Massachusetts to the First Circuit, and Judge Carolyn McHugh of Utah to 
the 10th Circuit for 4 months. They delayed confirmation of Judge Paul 
Watford of California to the Ninth Circuit, Judge Andrew Hurwitz of 
Arizona to the Ninth Circuit, Judge Michelle Friedland of California to 
the Ninth Circuit, Judge Morgan Christen of Alaska to the Ninth 
Circuit, Judge Nancy Moritz of Kansas to the 10th Circuit, Judge 
Stephen Higginson of Louisiana to the Fifth Circuit, Judge Gerard Lynch 
of New York to the Second Circuit, Judge Susan Carney of Connecticut to 
the Second Circuit, Judge Cheryl Krause of New Jersey to the Third 
Circuit, Judge Jill Pryor of Georgia to the 11th Circuit, and Judge 
Kathleen O'Malley of Ohio to the Federal circuit for 3 months. Even 
though they have been approved by the Republican-led Judiciary 
Committee, the three circuit nominees currently awaiting votes have 
been pending for months, too. Donald Schott of Wisconsin, nominated to 
the Seventh Circuit, has been waiting for 6 months. Jennifer Puhl of 
North Dakota, nominated to the Eighth Circuit, has been waiting for 5 
months. Judge Lucy Koh, of California, nominated to the Ninth Circuit, 
has been waiting for 3 months.
  And then there was the unprecedented blockade of the D.C. Circuit, 
when Senate Republicans refused to allow President Obama to fill any of 
three vacancies that still existed in 2013. Republicans tried to 
suggest that filling vacancies was ``court packing'' and tried to 
eliminate three seats from that court. This unfortunate tactic was 
pioneered by one Senator 20 years ago to prevent President Clinton from 
appointing an African-American judge to the Fourth Circuit, ultimately 
forcing President Clinton to recess appoint Judge Roger Gregory as the 
first African-American judge on that court. The filibuster, even as 
Senate Republicans abused it again and again, had traditionally been 
reserved for ``extraordinary circumstances'' and extending debates 
about the merits of individual nominees. President Obama made three 
excellent, highly respected nominations to the D.C. Circuit, but Senate 
Republicans did not focus debate on their qualifications or their 
records. Rather they claimed President Obama should be denied the 
ability to make nominations under his constitutional authority. I said 
at the time that some called this blockade ``nullification,'' as 
Republicans tried to thwart the will of the majority of Americans who 
elected President Obama in 2008 and again in 2012. Little did the 
American people know that this blockade would be a precursor to what 
they would do with his next Supreme Court nominee.
  Republican obstruction and abuse of the filibuster also extended to 
district court nominees under President Obama. It is particularly 
troubling that many of these nominees were targeted on the basis of 
actions they took on behalf of clients. I remember what Chief Justice 
Roberts said at his confirmation hearing: ``[I]t's a tradition of the 
American Bar that goes back before the founding of the country that 
lawyers are not identified with the positions of their clients. The 
most famous example probably was John Adams, who represented the 
British soldiers charged in the Boston Massacre. He did that for a 
reason, because he wanted to show that the Revolution in which he was 
involved was not about overturning the rule of law, it was about 
vindicating the rule of law. ``Our Founders thought that they were not 
being given their rights under the British system to which they were 
entitled, and by representing the British soldiers, he helped show that 
what they were about was defending the rule of law, not undermining it, 
and that principle, that you don't identify the lawyer with the 
particular views of the client, or the views that the lawyer advances 
on behalf of the client, is critical to the fair administration of 
justice.''
  To attack a judicial nominee on the basis of work they did for a 
client is to denigrate the rule of law and strike at the very 
foundations of the American legal system. It was wrong to filibuster 
Caitlin Halligan because special interests disliked a position she 
argued at the direction of New York's attorney general when she was 
that State's solicitor general. It was wrong to attack Edward Chen 
because he had worked at the ACLU and accuse him of having an ``ACLU 
gene.'' And it was appalling to filibuster John McConnell because of 
his work on litigation against tobacco companies. Nor was this limited 
to judicial nominations--the same shameful playbook was used against 
Debo Adegbile, an honorable and distinguished public servant who was 
nominated to serve as Assistant Attorney General for the Civil Rights 
Division in the Department of Justice. It should concern all of us that 
one of the leaders of this effort to undermine the adversarial system 
might be our next Attorney General.
  Until Barack Obama was elected President, we had a different 
standard. In all but the most extreme circumstances, we deferred to 
home State Senators and their work with the President to find the right 
nominee for their state. In 8 years, I cast votes against just two of 
President Bush's district court nominees. Early in President Obama's 
first term, 37 Senate Republicans voted against two of his district 
court nominees in 1 day. In my 42 years in the Senate, I have opposed 
cloture on a single district court nominee. I did so because of his 
personal involvement with efforts to intimidate African-American 
voters.
  One important Senate tradition has remained intact: the Judiciary 
Committee blue slip, which represents Senators' important role in 
providing advice and consent for the President's nominees. During the 
almost 20 years that I have served as chairman or ranking member of the 
Judiciary Committee, I have steadfastly protected the rights of the 
minority through both Republican and Democratic administrations-and I 
have done so despite criticism from Democrats. I have only proceeded 
with judicial nominations supported by both home State Senators. I will 
put my record of consistent fairness up against that of any chairman. 
Chairman Grassley has stated that he will continue the practice of 
requiring both blue slips before proceeding with a nomination, and I 
applaud him for that commitment. I hope he will continue to honor that 
commitment, despite the criticism he might receive.
  The blue slip matters because it protects the Senate's constitutional 
role in providing advice and consent on nominations. The Judiciary 
Committee and the Senate are not rubberstamps; we are a check on 
Presidential power, and we have a meaningful role in making 
recommendations to the President and then evaluating nominees on their 
individual merits. A fair and thorough confirmation process is how we 
give meaning to the checks and balances in the Constitution.
  Our Federal judiciary is also strengthened when it better reflects 
the Nation it serves. I commend President Obama for having nominated 
such a diverse group of qualified judges. In his first term alone, 
President Obama appointed as many women judges as President Bush did 
during his entire 8 years in office. In just those first 4 years, 
President Obama also nominated more African Americans, more Asian 
Americans, and more openly gay Americans than his predecessor did in 8 
years. This progress continued in President Obama's second term, and 
even without additional confirmations, he has appointed nearly twice as 
many women judges, more than two and a half times as many African-
American judges, and more than five times as many Asian American judges 
as President Bush. All Americans can be proud of the Senate and the 
President's efforts to have the Federal judiciary better reflect the 
public it serves.
  Despite unrelenting Republican obstruction, President Obama worked 
hard with home State Senators to find judicial nominees who were 
qualified,

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in the mainstream, and who helped ensure the Federal judiciary reflects 
all Americans. President Obama's nominees included Judge Christina 
Reiss, the first woman to serve on the District of Vermont; Judge Andre 
Davis, just the third African American to serve on the Fourth Circuit; 
Judge Irene Berger, the first African-American Federal judge in West 
Virginia; Judge Abdul Kallon, the third African-American district judge 
in Alabama, whose nomination to be the first African American from 
Alabama to serve on a Federal appeals court is being blocked by that 
State's Senators; Judge Jacqueline Nguyen, the first Vietnamese 
American to serve as a Federal district judge and now the first Asian 
Pacific American woman to serve as a Federal circuit judge as well; 
Judge Dolly Gee, the first Chinese American woman to serve as a Federal 
judge; Judge Rosanna Peterson, the first woman to serve on the Eastern 
District of Washington; Judge Nancy Freudenthal, the first female 
Federal judge in Wyoming; Judge Benita Pearson, the first African-
American Federal judge in Ohio; Judge Kimberly Mueller, the first woman 
to serve on the Eastern District of California; Judge Edmond Chang, the 
first Asian American Federal judge in Illinois; Judge Carlton Reeves, 
the second African-American district judge in Mississippi; Judge 
William Martinez, the second Hispanic to serve on the District of 
Colorado; Judge J. Michelle Childs, the second African-American woman 
to serve on the District of South Carolina; Judge Tanya Pratt, the 
first African-American Federal judge in Indiana; Judge Lucy Koh, the 
first Korean American woman to serve as a Federal judge; Judge Gloria 
Navarro, then the only woman and only Hispanic on the District of 
Nevada; Judge Barbara Keenan, the first woman from Virginia to serve on 
the Fourth Circuit; Judge O. Rogeriee Thompson, the first African-
American and just the second woman to serve on the First Circuit; Judge 
Albert Diaz, the first Latino to serve on the Fourth Circuit; Judge 
Mary Murguia, the first Hispanic and the second woman from Arizona to 
serve on the Ninth Circuit; Judge Denny Chin, who upon confirmation to 
the Second Circuit became the only active Asian Pacific American judge 
on our circuit courts; Judge Marco Hernandez, the first Latino to serve 
as a Federal judge in Oregon; Judge James Graves, the first African-
American from Mississippi to serve on the Fifth Circuit; Judge James 
Shadid, the first Arab American Federal judge in Illinois; Judge Mae 
D'Agostino, the only woman on the Northern District of New York; Judge 
Jimmie Reyna, the first Latino on the Federal circuit; Judge Edward 
Chen, just the second Asian Pacific American to serve on the Northern 
District of California; Judge Arenda Wright Allen, the first African-
American woman to serve as a Federal district judge in Virginia; Judge 
J. Paul Oetken, the first openly gay man confirmed to be a district 
judge; Judge Ramona Villagomez Manglona, the first indigenous person to 
serve as a U.S. District Court Judge in the Northern Mariana Islands; 
Judge Bernice Donald, the first African-American woman to serve on the 
Sixth Circuit; Judge Cathy Bissoon, the first woman of color to serve 
on the Western District of Pennsylvania; Judge Sharon Gleason, the 
first woman to serve on the District of Alaska; Judge Morgan Christen, 
the first woman from Alaska to serve on the Ninth Circuit; Judge 
Nannette Brown, the first African-American woman to serve as a Federal 
district judge in Louisiana; Judge Nancy Torresen, the first woman to 
serve on the District of Maine; Judge Steve Jones, who became one of 
only two active African-American Federal judges in Georgia; Judge Paul 
Watford, who is one of only two African-Americans serving on the Ninth 
Circuit; Judge Adalberto Jordan, the first Cuban-born judge on the 11th 
Circuit; Judge Stephanie Thacker, the first woman from West Virginia to 
serve on the Fourth Circuit; Judge Shelley Dick, the first woman to 
serve on the Middle District of Louisiana; Judge Landya McCafferty, the 
first woman to serve on the District of New Hampshire; Judge Susan 
Watters, the first woman to serve on the District of Montana; Judge 
Elizabeth Wolford, the first woman to serve on the Western District of 
New York; Judge Debra Brown, the first African-American woman to serve 
as a Federal judge in Mississippi; and Judge Diane Humetewa, the first 
Native American woman to serve as a Federal judge. We can all be proud 
that our Federal bench today better reflects the broad diversity of our 
Nation and represents the best of the legal profession.
  However, the nominees that are being obstructed on the floor today 
include Armando Bonilla, who would be the first Hispanic judge to ever 
serve on the U.S. Court of Federal Claims; Stephanie Finley, who would 
be the first African-American judge to serve on the Western District of 
Louisiana; Lucy Koh, who would be the first Korean American woman to be 
a circuit court judge; and Florence Pan, who would be the first Asian 
American woman on the district court in DC. I am also disappointed that 
we have not moved forward on the nomination of African-American Judge 
Richard Boulware to serve on the U.S. Sentencing Commission. The 
Sentencing Commission currently does not have a single person of color 
serving as a commissioner--yet it impacts criminal justice issues that 
deeply affect communities of color.
  In the 20 years that I have been chairman or ranking member of the 
Judiciary Committee, I have worked with Republicans and Democrats to 
ensure that our committee has provided a fair and thorough process for 
judicial nominees. Our power of advice and consent is a critical check 
on any President, and by protecting the independence of the third 
branch, we uphold our Constitution. The late Chief Justice Rehnquist 
referred to our independent judiciary as the crown jewel of our 
democracy, and he was absolutely right. I have worked to protect and 
strengthen that crown jewel during my time as chairman and ranking 
member of the Senate Judiciary Committee, and I will continue to do so 
in the years ahead.

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