America's Small Business Tax Relief Act of 2015--Motion to Proceed

Floor Speech

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Mr. DURBIN. Mr. President, there is an old verse that reads, if I remember correctly, as follows: While I was going up the stair, I met a man who wasn't there. He wasn't there again today. I wish that man would go away.

That man in the U.S. Senate is Merrick Garland, a person whom I am sure the Republican leadership wishes would just go away. But he is not going to go away.

Merrick Garland is the nominee whom President Obama has sent forward to fill the vacancy on the Supreme Court occasioned by the untimely death of Antonin Scalia. In sending that name forward, President Obama was meeting his constitutional responsibility. Article II, section 2 of the U.S. Constitution states clearly that the President shall--shall-- nominate a person to fill a vacancy on the U.S. Supreme Court. It goes on to say that the responsibility of the Senate is to provide advice and consent to Supreme Court nominations. It is very clear. The men who wrote the Constitution understood the importance of filling a vacancy on the U.S. Supreme Court, and they understood it to be so important that they mandated that the President send the nominee forward to fill that vacancy.

You can read that Constitution from start to finish and never find the rationale being used by Senator McConnell, the majority leader of the Senate, to stop that nomination from being considered in the Senate. There is no argument made in the Constitution--nor has there ever been an argument made--that because the President is in the last year of his 4-year term, he no longer has a constitutional responsibility to fill a vacancy on the Supreme Court. In fact, never-- underline never--has the Senate refused a hearing to a nominee who has been sent forward by a President of the United States to fill this important vacancy. It speaks volumes that Senator McConnell, the Republican leader, has decided--has taken it on himself--to stop the Senate from considering the President's nominee.

It is an embarrassing position to take for many of his colleagues. Look at what they are going through. Republican Senators who went home over this Easter break--many of them--went to town meetings where people asked this very basic question: Senator, why is it that you won't do your job? Why won't you even give a hearing to this man who was sent by the President for consideration by the Senate to fill this important vacancy?

It is a hard question to answer if you take the position of Senator McConnell, the Republican leader, because the answer is that, basically, he is arguing that this President has no authority--no authority to fill this vacancy. Senator McConnell argues that we should hold this vacancy open for the rest of this calendar year into next year so that a new President--whoever that might be--would have the power to fill this vacancy. He argues that the American people will speak through this next election as to a new President and that person should have the authority.

Well, what we discovered over the course of the last several weeks is this isn't about giving the American people a voice in choosing to fill that vacancy; it is about giving two individuals, the Koch brothers, the decision to fill that vacancy. These brothers have decided it is in their best interests--their political interests, their economic interests, whatever it may be--to keep this spot vacant on the U.S. Supreme Court in the hopes that a Republican Presidential candidate will win the election and fill the Court vacancy with the blessing of the Koch brothers. So Republican Senators are going back to their home districts and States, basically facing the electorate in their home States, and finding it impossible to justify avoiding any consideration of this nominee.

It got more difficult this morning.

The Washington Post has reported that U.S. Appeals Court Judge Merrick Garland is getting a boost for his Supreme Court nomination from some of the lawyers who know him best--his former law clerks. It goes on to say that 68 former law clerks for this judge have written to Members of Congress recommending him based on their personal experience of working professionally with him.

Let me read this passage from their letter:

There are not many bosses who so uniformly inspire the loyalty that we all feel toward Chief Judge Garland. Our enthusiasm is both a testament to his character and a reflection of his commitment to mentoring and encouraging us long after we left his chambers. He has stood by our side during the happiest moments of our lives--quite literally, having officiated the weddings of seven of his former clerks. He has welcomed us and our growing families into his home. He is a constant source of career advice and guidance. And he has offered love and support in the dark times, too, when we have suffered setbacks, losses, and uncertainty.

This article one might expect from his clerks saying what a good person he is, but they have gone out of their way to suggest to the Senate that a person of this quality and this integrity should be treated fairly--fairly.

I listened to some of the comments that are being made on the Republican side about this man, and it is a long way from fairness. What they are saying to him is we don't care about where you came from. We don't care about your education. We don't care about your professional qualifications. We don't care about your career on the bench. We care that you have been nominated by President Barack Obama, and as far as Senator McConnell is concerned, enough said.

If Barack Obama nominates this man, Senator McConnell has made it clear he will deny to him something that has never ever been denied to a Supreme Court nominee in the history of the United States of America: a fair hearing.

That is why it is painful for a lot of Republican Senators to go back and face audiences. The partisans in the audience come in, in a predictable state, with Republicans saying: Hold the line. Don't let Obama act like a President of the United States. We want him to go away. Democrats come in and ask: Can't you at least give this man a hearing? I would say to my Republican colleagues: Listen to the people who view themselves as Independents in this country, folks who don't carry a party label. They are saying overwhelmingly that Merrick Garland is entitled to a hearing before the U.S. Senate. He is an extraordinarily well-qualified man. There is no credible justification to refuse to give him a hearing.

Merrick Garland was born in Chicago. His father ran a small business. His mother volunteered in the Rogers Park neighborhood. He was the grandson of immigrants who fled anti-Semitism in the Pale of Settlement in Russia. They came to America in the early 1900s. Judge Garland grew up in Lincolnwood, IL. He graduated at the top of his class at Niles West High School in Skokie. He earned an undergraduate and law degree from Harvard. He was a law clerk to Judge Henry Friendly on the Second Circuit and to Supreme Court Justice William Brennan.

He had a distinguished career at the Justice Department. They sent Merrick Garland down after the Oklahoma City tragedy, when there was a terrible incident--a domestic terrorist bombing--that killed and maimed so many people. The prosecution of that accused terrorist was the highest priority for the Department of Justice. They had to get it right, not just for the cause of justice but for the victims and their families. They had to get it right on this prosecution. So they sent their very best prosecutor, Merrick Garland. He was given that responsibility and took it very seriously. He used to carry around with him the names of those who died in that Oklahoma City terrorist incident as a reminder of the solemn responsibility which he carried in this undertaking. That is the kind of person he is.

He successfully prosecuted those who were engaged in the terrorism that caused that terrible event. The Department of Justice thought that highly of him, and his performance in Oklahoma City was so stellar that he achieved his goal--a fair and effective prosecution.

The Senate considered Merrick Garland for the second highest court of the land, the D.C. Circuit Court in 1997. He received a majority vote on both sides of the aisle, Republicans and Democrats. The total final vote was 76 to 23. Thirty-two Senate Republicans voted to confirm Judge Garland. He has been on that court--the D.C. Circuit--for 19 years and he has been the chief judge for the last 3 years.

Throughout his lengthy judicial career, Chief Judge Garland has been praised for his intelligence, knowledge of the law, adherence to precedent, and his ability to forge a consensus. Listen to what Chief Justice John Roberts of the U.S. Supreme Court said during his own confirmation hearing: ``Any time Judge Garland disagrees, you know you're in a difficult area.''

I have my differences with Chief Justice Roberts of the U.S. Supreme Court, but I will be the first to say his presentation to the Senate Judiciary Committee was one I will never forget. He sat there for 2 days, without a note in front of him, and answered every question effectively and eloquently. I left there with the distinct impression he was one of the brightest individuals who had ever been nominated to the Supreme Court.

So this man, Chief Justice Roberts, whether we agree with his politics or his decisions, should be listened to when he says of Merrick Garland, President Obama's nominee, that if you disagreed with Judge Garland, you know you are in a difficult area. That is high praise from Chief Justice John Roberts. It is high praise for a man who has been denied a hearing before the Senate Judiciary Committee for the first time in the history of the Senate.

I commend Judge Garland for his many decades of public service and congratulate him and his wife Lynn and their daughters for the great honor they have been given to be nominated to the U.S. Supreme Court. I offer as well a word of apology to them for the way they are being treated by the U.S. Senate. This is not right.

I hope that in the quiet and the solitude of their own Republican caucus lunch, they will close the door and turn to one another and say: This is not fair. It is not right. We owe this man a hearing. I am not saying he should be rubberstamped. I am not saying the Senate Republican majority should approve this man, although I think it is difficult not to. I am saying he should be given a hearing. He deserves that respect from the U.S. Senate.

It would be terrible and beneath the dignity of the Senate Republicans to close the doors of the Senate to such an accomplished American and deny him a fair hearing and a vote. The President has met his responsibility. The Senate should do no less.

I know Merrick Garland is in for a rough ride. The senior Senator from Texas said as much a few weeks ago. He said President Obama's Supreme Court nominee would ``bear some resemblance to a pinata.''

Do we know what that means? Remember, if you will, that Mexican custom of filling a paper mache animal with candy, then blindfolding a child and giving him a stick or a bat to try to swing wildly and beat on that pinata until it is broken open and the candy hits the floor. That was the analogy used by the senior Senator from Texas as to how Merrick Garland should expect to be treated if his nomination comes before the Senate. It is a sad commentary, but it may reflect the reality of the bitter political environment we live in. It is troubling to hear our nomination process in the Senate characterized this way.

There is a way to avoid pinata politics. Let's give Merrick Garland a fair hearing.

Right now, conservative groups and some Senate Republicans are taking their swings blindly at Merrick Garland. They are flailing around, hoping to find some argument to justify the mistreatment which they are offering. For example, there is a rightwing advocacy group calling itself the Judicial Crisis Network, whatever that is, that recently announced a multi-State ad campaign against Judge Garland. How about that. They will not give him a hearing. They will not even let him sit down in a chair under oath and face questions and give answers, but they have started a multi-State ad campaign against him. The campaign said that with Garland on the bench, the Second Amendment would be ``gutted'' because ``in two separate cases, Garland has demonstrated his strong hostility to gun owner rights.'' Several Senate Republicans have echoed this attack. They have heard this so-called Judicial Crisis Network ad and they have decided to amplify it.

However, there is no argument that can be made seriously or fairly for the proposition that Judge Garland opposes the Second Amendment in his rulings.

There are two cases mentioned by this rightwing organization on the subject. They date back many years to 2000 and 2007. The first was a case involving the auditing of background check records. When that case was appealed to the Supreme Court, the Justice Department of President George W. Bush, led by conservative Attorney General John Ashcroft, agreed with Judge Garland's position. There was no controversy as far as they were concerned. So a Republican President and a Republican Attorney General agreed with the ruling of Judge Garland.

In the other case in which Judge Garland is accused of having overstepped the bounds on the Second Amendment, he never even addressed any substantive Second Amendment issue.

If the Judicial Crisis Network was so outraged by these decisions in the year 2000 and the year 2007, why didn't they bring it up in 2010 when Merrick Garland was in the running to fill a vacancy on the Supreme Court? In that year, Carrie Severino, the head of that organization--the Judicial Crisis Network--told the Washington Post:

Of those the President could nominate, we can do a lot worse than Merrick Garland. He's the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer.

I just quoted the person who was in charge of the Judicial Crisis Network when Merrick Garland was under consideration for the Supreme Court six years ago. Now that same network has decided to spend millions of dollars to stop this nominee.

If Judge Garland's views on the Second Amendment were so objectionable, why has he been praised by Charles Cooper, the gun lobby's top outside attorney? On March 28 of this year, Cooper told the Washington Post about his ``high opinion'' of Garland as a judge.

So here is the reality. Rightwing advocacy groups like the Judicial Crisis Network are swinging wildly at Judge Garland. They mischaracterize his record and they attack his judgment in an effort to discredit him. If the Senate holds a public hearing for Garland, he would at least have his day to state his position clearly on the Second Amendment, but they are so afraid of what he is going to say, the Republican leadership in the Senate has denied Merrick Garland an opportunity for a hearing at this point in time.

At a hearing, the American people could judge for themselves. How about that for a novel idea; that we would put Merrick Garland under oath, sit him at a table, ask whatever questions we consider to be important for his nomination, and then let the American people decide. The Republicans will have nothing to do with that. Senator McConnell has said from the start he is never going to allow that to occur.

The Senate is doing Judge Garland and our Nation a grave disservice if we don't move forward with a public hearing on this nomination, as we have with every other Supreme Court nominee that has been sent by a President.

Just for the record, go back to 1987, when a vacancy occurred on the Supreme Court, and in 1988, the last year of Ronald Reagan's Republican Presidency, he sent a nominee to the U.S. Senate to be considered. Anthony Kennedy was a Reagan nominee, and the Democratic-controlled U.S. Senate not only gave Anthony Kennedy a hearing, they gave him a unanimous vote, sending him to the Supreme Court. Despite the fact that Ronald Reagan was a ``lameduck''--the last year of his Presidency--the Senate at that time respected the Office of the Presidency and respected the Constitution enough to give Anthony Kennedy his day before the Senate Judiciary Committee, his day before the U.S. Senate. If it was fair enough for a Republican President in a Democratic Senate, why isn't the same standard to be used when it comes to President Obama's nominee being sent to the Senate on this day? It cannot be explained away.

What does this vacancy on the Supreme Court mean? There are only eight members of a nine-member Court. Already the Supreme Court has deadlocked twice on 4-to-4 tie votes since Justice Scalia's passing. Almost 50 cases still need to be decided in this term. Major legal questions may go unresolved because the Senate is not doing its job and not filling this vacancy.

Judge Garland does not deserve to be used as a pinata--a word used by a Senate Republican describing what he would face in the Senate. Let's give him an opportunity to rebut any attacks made against him. Let him explain himself on the record in full view of the American public. Let the American people decide if the ads and attacks against him are valid or baseless.

I urge my Republican colleagues: Do not follow the lead of rightwing advocacy groups and attack Judge Garland's character or record when you refuse to give the man a chance to respond at a public hearing. That is fundamentally unfair.

This is a real moment of truth for the Senate. No Supreme Court nominee has ever been denied a hearing before, and Merrick Garland should not be the first. The message of the American people to the Senate Republican majority is very simple, three words: Do your job. Do your job under the Constitution. Have a hearing. Be fair to this man. Don't dream up excuses. Don't argue with this President who won by 5 million votes over Mitt Romney. Don't disrespect the Office of the Presidency or the Constitution, which in its clarity establishes our responsibility to give a hearing to this nominee. My Republican colleagues need to do their job and to schedule a hearing for Merrick Garland without delay.

Appeals Court Judge Merrick Garland is getting a boost for his Supreme Court nomination from some of the lawyers who know him best: his former law clerks.

Sixty-eight former Garland clerks signed a letter delivered Monday to Senate leaders of both parties, urging them to confirm his nomination. The signers comprise all but three of the ex-clerks Garland has employed since he joined the U.S. Court of Appeals for the District of Columbia Circuit in 1997. And the three holdouts have a good reason: They are clerks for Supreme Court justices.

The three-page tribute is both professional and personal.

``There are not many bosses who so uniformly inspire the loyalty that we all feel toward Chief Judge Garland,'' the ex-clerks write. ``Our enthusiasm is both a testament to his character and a reflection of his commitment to mentoring and encouraging us long after we left his chambers. He has stood by our side during the happiest moments of our lives--quite literally, having officiated the weddings of seven of his former clerks. He has welcomed us and our growing families into his home. He is a constant source of career advice and guidance. And he has offered love and support in the dark times, too, when we have suffered setbacks, losses, and uncertainty.''

Clerkships on the D.C. Circuit are among the nation's most prestigious, second only to the Supreme Court itself. The signers have gone on to high-level positions in federal and state government, private practices and academia. Several have spent time in the office of the White House counsel; one of those lawyers, Danielle Gray, served as Cabinet secretary to President Obama.

The letter paints a familiar portrait of Garland as a careful judge, a hard-working public servant and a devoted family man. But it also offers a couple of glimpses behind the curtain.

In one notable passage, the clerks write that Garland ``taught us the value of diversity, in all its forms.''

``We observed how Chief Judge Garland forged meaningful connections with others from a wide array of backgrounds and ideological perspectives--from the law clerks he hires to the personal and professional relationships he maintains. He finds camaraderie with his fellow judges without regard to who nominated them to the bench. Chief Judge Garland deeply believes that our system of justice works best when those who see things differently are able to work together, in a collegial manner, to arrive at a just result. And when he must disagree with his colleagues, he always does so respectfully.''

And they describe how his private response to the Sept 11, 2001, attacks had a profound impression on the four clerks who were working for him at the time: ``From his chambers, we watched with horror the news about the attacks on the World Trade Center and the Pentagon. In the days after, we remember the explicit importance Chief Judge Garland placed on coming to the office everyday and continuing to prepare for upcoming cases. In the aftermath of that terrible tragedy, he believed it was more important than ever for the American people to see that their system of government was functioning without interruption--that the rule of law endured!''
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