Legislative Branch Appropriations Act, 2017

Floor Speech

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Mr. BLUMENTHAL. Madam President, I am proud to join my colleagues who have come to the floor, including the distinguished Senator from Delaware and my friend and colleague from the great State of Vermont, and with other colleagues who will follow us in saying, very simply, we should do our job and avoid the damage to our democracy that will result from our dereliction of duty if we leave town without a hearing and a vote to fill the vacancy created by the tragic death of Justice Scalia.

I know something about the Supreme Court, having clerked there for 1 year with Justice Harry Blackmun, having argued cases there as attorney general of the State of Connecticut. I walk by or ride by the U.S.
Supreme Court every day as I come to work at the Capitol, and I have tremendous respect, in fact, reverence, for the U.S. Supreme Court. Its power derives from its credibility and trust. It is being above politics. It has no armies, no police force. Its decisions are enforceable and enforced simply because the American people have confidence in its credibility.

The reason for that credibility was well stated by Chief Justice John Roberts, who said: ``We don't work as Democrats or Republicans, and I think it's a very unfortunate impression the public might get from the confirmation process.''

That confirmation process is stymied and stopped, stalled now by bipartisan paralysis that reinforces the misimpression among the public that the Supreme Court may simply be another part of the political process.

The Supreme Court should be above politics. This dysfunction and dereliction of duty does damage to our democracy because it drags the Supreme Court into the muck and morass of partisan politics and deprives it of the credibility and trust that are the underpinning of its force as a democratic institution. Think of it for a moment. There are two elected branches, the President and Congress, and then an unelected one, appointed for life, totally dependent on its being above politics.

We have a constitutional duty to advise and consent, not when it is politically convenient, not when it fits into our schedules but when the President makes a nomination. We have fulfilled that duty consistently during the last 100 years, taking action on every pending nominee to fill a vacancy on the Supreme Court.

The current impasse has real, practical consequences in depriving individuals in this Nation of justice they need and deserve. It has real consequences for real people. As we saw last term and as we are about to see on Monday with the beginning of a new term, issues of law essential to a functioning democracy and basic fairness will be left unresolved because of a deadlocked Court. The resulting uncertainty causes harm across the land and across our economy, creating confusion among businesses that need to know what the rules of the road are going to be. If money is borrowed, when does it have to be repaid? If regulation is to be challenged, will it be upheld?

These kinds of decisions are, in fact, real cases before the U.S.

Supreme Court. The uncertainty and confusion resulting from deadlocked Court decisions and the lack of law--because indecision means a lack of resolution of legal issues--have consequences that impede job creation and economic growth in this country. By refusing to do its job, the Senate of the United States is precluding others from doing their jobs, from creating jobs, and from growing our economy, as all of us would like to see done.

I am not arguing that any individual Senator has an obligation to vote for Merrick Garland. I believe he is preeminently qualified. I have known him for years. I have tremendous respect for his intelligence and integrity. I believe he will convince other of my colleagues that he is extraordinarily well qualified to serve as the next Justice on the U.S. Supreme Court.

That job of convincing our colleagues is his to do. He should be given an opportunity to do it in a hearing, as he has done for many of us in his individual conversations with us. Unfortunately, our Republican colleagues have denied him even a hearing, not to mention a vote.

It adds insult to injury when this body not only stonewalls Judge Garland's nomination but departs for lengthy breaks, as we did in August and as we will now do again, without giving him consideration.

This year, the Senate has worked fewer days and taken a longer recess than in the past 50 years, despite leaving our constitutional duty unfulfilled.

That is why I am proud to submit today, along with 42 of my Democratic colleagues, including Senator Leahy of Vermont, the ranking member on the Judiciary Committee, along with my colleagues on the Judiciary Committee, a resolution that says to the Senate of the United States: Do not leave town for a recess until we have provided a hearing and a vote on the pending Supreme Court nomination. Do not leave town without doing your job. Do not leave town without fulfilling your constitutional duty to advise and consent.
That is what we should be doing.

I am not going to read the resolution, but it essentially says the President has the obligation to nominate. We have the obligation to advise and consent. We have done so in past years. We should do so now.

I will quote this one sentence: ``Whereas forcing the Supreme Court to function with only 8 sitting justices has created several instances, and risks creating more instances, in which the justices are evenly divided as to the outcome of a case, preventing the Supreme Court from resolving conflicting interpretations of the law from different regions of the United States and thereby undermining the constitutional function of the Supreme Court as the final arbiter of the law.'' Paraphrasing: Be it resolved that the Senate should not adjourn, recess, or convene solely in pro forma session until we have taken action on the pending nomination through holding a hearing in the Judiciary Committee, holding a vote in the Judiciary Committee, and holding a vote in the full Senate.

Some of the threats to our democracy come from outside this country, from violent extremists or military aggressors who mean to do us harm, but the threats to our democracy can also include self-inflicted wounds--unintentional, perhaps.

I know my colleagues--and I say this with the greatest respect-- believe they are justified in what they are doing. We have legitimate disagreements. We may disagree whether Merrick Garland is qualified to be on the U.S. Supreme Court. I believe, without question or reservation, he would be a great Justice on the U.S. Supreme Court, and he will be, but let's at least give him a vote. Let's do our job and avoid the self-inflicted damage to our democracy that will result from our leaving without upholding our constitutional duty.
Madam President, I yield the floor.

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