Transportation, Housing and Urban Development, and Related Agencies

Floor Speech

BREAK IN TRANSCRIPT

Mr. BLUMENTHAL. Madam President, I am very honored and I feel very privileged to be a member of this body today as we commemorate the anniversary of Brown v. Board of Education. I thank my colleagues, the distinguished Senator from Delaware, and most especially my very good friend and colleague from Virginia for his very eloquent and powerful remarks and also for bringing us together in this colloquy today.

Sixty-two years ago on this day, the Supreme Court unanimously struck down as unconstitutional the segregation of schools by race, declaring that ``separate but unequal schools are inherently unequal.'' Today, that proposition seems so obvious as to be indisputable and the fact of a unanimous Supreme Court seems inevitable, but it was hardly inevitable 62 years ago.

It is a triumph and tribute to American justice that it happened and that it happened at all given the staunch and implacable resistance that there was to that proposition 62 years ago. In fact, the Supreme Court courageously stepped forward to advance American justice and establish a milestone and reestablish the principle that it is enshrined in our Constitution that every citizen is entitled to equal protection under law.

The battle to upend years of racial and educational inequity remains unfinished today. If we emerge from this colloquy with any message, it must be that the work remains unfinished and there is so much more work to be done in the spirit and letter of the law.

The culmination of decades-long work and strategy by innovative lawyers, community organizations organizers, and other advocates of social change was that decision. It is a tribute to their work as well and a reminder that individuals can make a difference in our system, can litigate to a successful conclusion, can advocate principles that are a matter of moral imperative. It took an act of the Supreme Court, of an independent judiciary, to declare educational segregation unconstitutional and integration the law of the land.

As a law clerk on the U.S. Supreme Court in the 1974-1975 term, working for Justice Harry Blackmun, I had the chance to watch arguments, some of them on pressing issues of the time, but also to talk with some of the Justices who watched or even participated in the Brown decision, including Justice Thurgood Marshall, the chief counsel for the plaintiffs in Brown.

Anybody who thinks that decision was inevitable should talk to some of the lawyers who were involved in the litigation and who eventually advanced it to the Supreme Court and to its successful conclusion and read the history of the controversy within the Court and the internal debate that took place about the proper role of the Court and the principles to be applied. It was far from inevitable. But it also shows how the branches of government, working together and collaboratively advancing justice in America, are important to the fundamental dynamic of our constitutional system.

The Brown decision took enforcement. President Dwight Eisenhower led that effort in one of the toughest tests in the massive protest in Little Rock, AR, just 3 years after Brown.

Ten years after Brown, Congress expanded the logic of this great decision to pass the Civil Rights Act of 1964 making segregation in public places like restaurants illegal as well.

Reading and reviewing the dynamics of the Court at the time, one wonders what would have happened if there had been only eight members. How history might have been different. Justice might have been delayed and perhaps history changed for the far worse, justice denied as a result of that delay.

The group of Justices who unanimously issued the decision was no intellectual monolith; they were members nominated to the Court by Presidents Roosevelt, Truman, and Eisenhower. Before the Court came an issue of major significance, which they came together to evaluate on principles of law that we all share, that discrimination is invidious and intolerable and violations of the Constitution will be held unacceptable in the Court.

Today, congressional Republicans, very frankly, hamper the ability of the Supreme Court to answer important legal questions of our time by refusing to hold even a hearing or a vote for Judge Merrick Garland. Their doing so has left the bench of the Supreme Court with only eight Justices. That lack of a ninth Justice diminishes and in many respects even disables the Court, as we saw just yesterday in a decision that might well have been decided otherwise if there had been nine Justices to give a majority to one point of view or another.

Justice Scalia warned against this very issue, stating that ``eight justices raise the possibility that, by reason of a tie vote, [the Court] will find itself unable to resolve the significant legal issue presented by the case. . . . Even one unnecessary recusal impairs the functioning of the Court.''

Justice Scalia's foresight was prescient. In two recent cases, even before the one yesterday, the Court deadlocked, unable to reach a definitive pronouncement on the law, because of a 4-to-4 tie. Unnecessary circuit splits cause uncertainty, which in turn hampers the activities of ordinary citizens, of small businesses wondering what rules will apply to them, whether it is banking rules or investment regulations, hampering their ability to plan and create jobs.

The Washington Post recently reported that the Court's acceptance of new cases has slowed significantly, leaving crucial unresolved legal questions without definitive answers. That is not how our system is supposed to work. That is not how the Founders saw it. That is not how the Supreme Court could resolve the Brown v. Board of Education challenge. The Supreme Court must have a full complement of Justices to effectively address these complex, challenging, urgent issues faced by our Nation today.

I reject the notion that the Senate's refusal to act, as laid out in no uncertain terms by our Republican colleagues, fulfills our constitutional obligation. It is our obligation to advise and consent on the President's nominee. We ``shall'' do so. That is the constitutional mandate--not when it is politically convenient, not when we think it is advantageous, but when the President nominates, whoever the President is, whether it is President Eisenhower nominating Earl Warren or Presidents Truman and Roosevelt, who nominated other Justices on the Supreme Court who decided Brown v. Board of Education.

We cannot afford to weaken the Federal judiciary's credibility, the trust and confidence of the American people in the authority of our judiciary. Its authority depends on it being above politics. Alas, what the Senate is doing is dragging the U.S. Supreme Court into the muck of partisan bickering.

Brown v. Board of Education became the law of the land because of the U.S. Supreme Court's credibility. The Supreme Court had no police force to enforce it. It had no armies or mandatory physical force. It had its credibility and its authority, its moral authority because it was above politics in the minds of most Americans. That is the reason President Eisenhower was able to do what he succeeded in enforcing at Little Rock and the Presidents afterward have done similarly.

Most importantly, I hope we all take time today to reflect on the importance of the Brown decision and recognize the grit and courage of the men and women who fought to end school segregation only 62 years ago. The best way of honoring their legacy is to do our job and our duty constitutionally, to fulfill that duty and their legacy by considering Judge Garland's nomination without further delay.

BREAK IN TRANSCRIPT

Source