Legislative Branch Appropriations Act, 2017

Floor Speech

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Ms. KLOBUCHAR. Madam President, I come to the floor to speak again about the dangerous effects of leaving the current vacancy on the Supreme Court unfilled and the real consequences that the current vacancy has caused for this country.

It has now been more than 6 months since President Obama nominated Judge Merrick Garland to fill the current vacancy on the Supreme Court, and we still haven't had a hearing, much less a vote. As a result, Judge Garland is now the longest pending Supreme Court nominee in history.

Since the Senate has not acted, the Supreme Court will still be without a full complement of Justices when it begins its October term next week. There is a lot at stake in the Supreme Court's upcoming term. The cases that the Court will hear focus on significant issues that affect Americans' everyday lives.

Among those cases are important questions involving voting rights and discrimination in housing. The Court will also take up cases on immigration and environmental protection that would impact millions of people across the country. We know they have been taking less cases, and we also know there have been a number of split decisions, including a recent one on a death penalty case.

Further delay in the confirmation of a new Justice will compromise the Court's ability to resolve these questions of law effectively. If we do not have a fully staffed Court in the next term, we risk more cases in which the Court is unable to issue binding precedent and in which access to justice is denied for too many Americans. In some decisions where there is a 4-4 split, the result is effectively the same as if the Supreme Court had never heard the case. That is certainly not what our Founding Fathers intended with the Constitution.

But more split decisions are not the only risk that we are facing here. The current vacancy on the Supreme Court also has implications for the number of cases that the Court is able to take in the first place. We saw this played out many times last spring. In March of last year, the Supreme Court granted certiorari on eight cases. This year, it only did so for two. Indeed, we have seen time and again over the Court's last term that the Supreme Court simply cannot function well without a ninth Justice--with split decisions, diminished decisions, delayed decisions, and no decisions.

With only eight Justices, the current Court could not reach a final decision on the merits in seven cases during its most recent term. In five of these cases, the Court deadlocked in split decisions with four Justices on either side. In the other two cases the Court had to remand the case back to the lower courts when it was unable to render a decision on the merits.

The lower courts rely on the Supreme Court as the final decisionmaker. There are courts all over the Nation that may have different decisions, and they are waiting for the final word from the Supreme Court. That is how our system of justice has worked. But what is most important is that in each of these cases the Court was unable to carry out its constitutional obligation.

The potential for worse during the Court's next term is real. For instance, what if some of the landmark cases that are familiar to citizens, such as Miranda v. Arizona, were a 4-to-4 decision? Or an emergency case like Bush v. Gore--what if that were 4 to 4? Or Brown v. Board of Education?

Former President Ronald Reagan recognized the importance of having a fully staffed Supreme Court in 1987. He said: ``Every day that passes with the Supreme Court below full strength impairs the people's business in that crucially important body.''

President Reagan made that statement around the same time he nominated Justice Kennedy, who was confirmed unanimously by the Senate, which was controlled by the opposite party--the Democratic Party--in the last year of a Republican Presidency.

Over the past several months, I have tried to put myself in my colleagues' shoes, and I asked myself: What if we had the opposite case? What if we had a Republican President and a Democratic-controlled Senate? What would I do? Well, I would demand a hearing. I would never let a nominee float out there for 6 months while we have less decisions, diminished decisions, and no decisions.

I don't know how I would vote on the nominee. I would like to ask the nominee questions and decide if they were qualified to serve on the Supreme Court.

Our job under the Constitution is to advise and consent. It is not to advise and consent only after a Presidential election has occurred.

This has been our practice in the Senate for more than a century. For more than 100 years the Senate has had a process that worked under both Democratic and Republican Presidents and even in--yes--Presidential years. Through World War I and World War II, through the Great Depression, through the Vietnam war, through the economic downturns, we were somehow able to make it as a democracy. We were somehow able to do our job to advise and consent.

I would also add in closing my remarks about Judge Garland's widely credited ability to draft thoughtful, narrow legal opinions and build consensus among his colleagues on the bench. The President was well aware when he nominated Judge Garland that he would need to nominate someone who had that ability, and, with the kind of votes that we have seen in the Senate, someone who is a fine man. He deserves the opportunity to make his case to the Senate, and the public deserves the opportunity to see the kind of Justice he would be.
It remains my sincere hope that he will have that opportunity for a hearing to prove himself in the months to come.

I thank the Presiding Officer, and I yield the floor.

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