Doing the right thing by Merrick Garland

Over one year ago, Merrick Garland, Chief Judge of the DC Circuit Court of Appeals, was nominated to fill a vacancy on the Supreme Court. Judge Garland, a consensus builder and one of the most qualified and respected judges in the country, waited 293 days for a hearing and a vote that ultimately never came. Some of my Republican colleagues refused to even meet with Judge Garland. I believe that the obstruction of Judge Garland’s nomination was unprecedented and shameful. A good man was treated badly—and so was our Constitution.

Next week, my Republican colleagues are preparing to speedily bring Judge Neil Gorsuch’s nomination to the floor for a vote to fill this vacant Supreme Court seat—what I believe should be Judge Garland’s seat—after holding a confirmation hearing 48 days after his nomination. I am still deeply troubled by how Judge Garland was treated. Judge Garland still deserves a hearing, and he still deserves a vote. Late yesterday, I spoke on the Senate floor urging my colleagues to push the pause button on the nomination of Judge Gorsuch until we find agreement on moving Judge Garland’s nomination forward at the same time.

That belief is only bolstered by the cloud that lingers over President Trump’s campaign. As FBI Director Comey testified last week, there is an ongoing investigation to determine the links between Russia and the Trump campaign and whether there was any coordination between the Trump campaign and Russia to interfere in the 2016 election. To hastily move forward with Judge Gorsuch, who is 49-years old and could serve on the Court well into the middle of this century, without first getting to the bottom of the suspicious and irregular actions of Trump campaign officials would be a mistake. The American people need to know that the president’s campaign was above reproach before we decide whether Judge Gorsuch merits approval for a lifetime appointment.

Judge Garland waited 293 days for a hearing and a vote that never came. Judge Gorsuch waited 48 days for a hearing and now my colleagues are preparing to quickly consider his nomination. We have time. The American people are watching us, and history will judge us. Let’s make sure we get this right. I hope you’ll take a few minutes to watch my floor speech here, or read my full remarks below, urging the Senate to right this historic wrong.

Mr. President, I rise to lend my voice in support of perhaps one of the most qualified individuals ever nominated to the United States Supreme Court. I’m referring, of course, to Chief Judge Merrick Garland.

Over one year ago, on March 16, 2016, a President who was twice elected by significant margins in both the popular vote and the Electoral College nominated Judge Garland to fill the vacancy left by the death of Justice Antonin Scalia. President Obama upheld his constitutional duty by submitting a name to the Senate to fill this vacancy. And by submitting the name of Merrick Garland, he gave the Senate a man who has spent his career working to build consensus and find principled compromises.

His impeccable credentials speak for themselves. Harvard undergrad—top of his class. Harvard Law—top of his class. Law clerk to Judge Friendly on the Second Circuit and Justice Brennan on the Supreme Court. He served in the Justice Department after a time in private practice. And when tragedy befell Oklahoma City in April 1995, Merrick Garland led the investigation that brought justice to the perpetrators of that unthinkable act of terrorism. Judge Garland called this work, ‘The most important thing I have ever done in my life.’ But his career was far from over.

In 1997, Republicans and Democrats joined together to confirm Judge Garland to the D.C. Circuit Court of Appeals—what is often called the ‘second-highest court in the land.’ Here’s what Senator Orrin Hatch, former Chairman of the Senate Judiciary Committee and current President Pro Tempore of the Senate, said of him at the time:

‘Merrick B. Garland is highly qualified to sit on the D.C. Circuit. His intelligence and his scholarship cannot be questioned… His legal experience is equally impressive… Accordingly, I believe Mr. Garland is a fine nominee. I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court.’

Over the past two decades on the DC Circuit, Judge Garland established a reputation as a thoughtful and fair judge, a man of high integrity, a consensus builder, and a judicial moderate. And even those who may disagree with him tend to find themselves thinking a little harder about their own views. During his 2005 confirmation hearing to serve as Chief Justice, John Roberts, who served with Judge Garland on the DC Circuit, stated: ‘Any time Judge Garland disagrees, you know you’re in a difficult area.’ 

In 2013, Judge Garland was promoted to Chief Judge on the DC Circuit. When President Obama nominated him to the Supreme Court over one year ago, Judge Garland brought with him more federal judicial experience than any nominee in the history of the United States.

When I met with Judge Garland, I got to know him beyond just his resume. I was struck by Judge Garland’s humility and personal character. Even as a nominee for Supreme Court Justice, he continued to serve his community as a mentor to elementary school students right here in Washington, D.C., something he has done for the past two decades. 

Mr. President, over one year later, as I stand here today, a seat on the Supreme Court– what should be Judge Garland’s seat – remains vacant. My Republican colleagues, in an unprecedented display of obstruction and partisanship, denied Judge Garland a hearing and a vote. Many of our Republican colleagues refused to meet with Judge Garland, and he was denied both a hearing in the Judiciary Committee and a cloture vote in the full Senate. Since the Senate Judiciary Committee began holding public hearings on Supreme Court nominees in 1916, no Supreme Court nominee has ever been denied a hearing and a vote. 

Well, until, Judge Garland.

According to the highly-respected website SCOTUS Blog: 

‘The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.’

But Judge Garland was denied a hearing and a vote. In fact, during the 1988 presidential election year, Justice Anthony Kennedy was confirmed 97-0 by the Senate. But Judge Garland was denied a hearing and a vote.

Mr. President, our Constitution, the one that every member of this great deliberative body has sworn an oath to uphold, requires the United States Senate to provide its “advice and consent” to Supreme Court nominees. 

But Judge Garland was denied a hearing and a vote.

A good man was treated badly.

And so was our Constitution. 

I believe the unprecedented obstruction our Republican colleagues mounted last year against Judge Garland was a shameful chapter for the United States Senate. Judge Garland, a consensus builder and one of the most qualified judges in the country, waited 293 days for a hearing and a vote that ultimately never came. I am still deeply troubled by those 293 wasted days, and I am still deeply troubled by how Judge Garland was treated. I believe Judge Garland still deserves a hearing, and he still deserves a vote.

While I do not believe that two wrongs make a right, I believe this may be our only opportunity to right a wrong and erase the enormous black mark the Senate’s failure to consider Judge Garland leaves on this chapter of American history. It is unacceptable to put partisan politics over fidelity to our Constitution. Confirming anyone for this vacancy other than Judge Garland would be a stamp of approval for playing politics with Supreme Court nominees.    

From where I sit, upholding my oath to protect the Constitution means finding agreement on moving Judge Garland’s nomination forward at the same time as Judge Neil Gorsuch, President Trump’s Supreme Court nominee. 

When President Trump lost the popular vote by nearly three million votes and narrowly won the Electoral College, he promised to be a President for all Americans.

Has he upheld that promise?

An unconstitutional Muslim ban. 

An unnecessary and overpriced wall on the southern border. 

A failed healthcare bill that would’ve provided less coverage for more money.

A roll back of environmental protections for our air and water.

If you ask me, he has broken the promise to be president for all Americans. And his nomination of Judge Gorsuch represents another broken promise. 

I have heard from middle class folks, from workers up and down my state, from special education teachers, from immigrant communities, from women who depend on access to health care. They all fear that Judge Gorsuch is not on their side. Despite his impressive resume, I have those same concerns.

At this time, I believe it is appropriate to hit the pause button until an agreement can be reached that provides justice for Judge Garland, while restoring credibility to the Senate. That belief is only bolstered by the cloud that lingers over President Trump’s campaign. As FBI Director Comey testified last week, there is an ongoing investigation to determine the links between Russia and the Trump campaign and whether there was any coordination between the Trump campaign and Russia to interfere in the 2016 election. It has also been widely reported in the media that officials from the upper echelon of the Trump campaign have close ties to Vladimir Putin’s interests in weakening democratic governments throughout the West.

There are many Americans who believe that Judge Gorsuch has been nominated for a stolen Supreme Court seat. There are also a number of Americas who believe that he has been nominated by a man whose campaign may have coordinated with foreign adversaries on stealing a presidential election. At the moment, no evidence has been made public to indicate that is the case. But there are few nominations that any president will make that will have more impact on our Constitution and on the lives of everyday Americans than Supreme Court nominees.

To hastily move forward with Judge Gorsuch, who is 49-years old and could serve on the Court well into the middle of this century, without first getting to the bottom of the suspicious and irregular actions of Trump campaign officials would be a mistake. The American people need to know that the president’s campaign was above reproach before we decide whether Judge Gorsuch merits approval for a lifetime appointment.  

Mr. President, I will close my remarks by offering a word of caution to my colleagues. We have maintained and preserved a 60-vote threshold for Supreme Court nominees to prevent Democrats and Republicans from choosing political expediency over bipartisan consensus. If Judge Gorsuch fails to obtain 60 votes on the cloture vote next week, I would think it could signal one of three things.

First, that Judge Gorsuch’s views are outside the judicial mainstream.

Second, that we still have an opportunity to rectify the injustice done to Judge Garland, and to our Constitution. 

Or third, that we still do not know the nature of the relationship between the Trump campaign and Russia—a country whose leadership ordered an attack on our election and our democracy.

If Judge Gorsuch fails to achieve 60 votes on the first try or the next try, it does not mean his nomination will not move forward at some point in the future. It means we’ve hit the pause button. It may very well be that, while we’ve paused, another vacancy on the Court could emerge. Who knows when another vacancy might occur? 

But if you ask me, another vacancy might present the Senate with an opportunity to right a historic wrong. And we should see if the other objections that have been raised about Judge Gorsuch could be addressed before we change the rules of the Senate to favor the party in power. 

Judge Garland waited 293 days for a hearing and a vote that never came. Judge Gorsuch waited 48 days for a hearing and we may be voting on his nomination next week. Talk about a rush to judgment. 

We have time. The American people are watching us, and history will judge us. 

Let’s make sure we get this right.