Leahy on Supreme Court vacancy and peaceful transition of power

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Leahy on Supreme Court vacancy and peaceful transition of power

Thu, 09/24/2020 - 12:08pm -- tim

Statement of Senator Patrick Leahy (D-Vermont) Executive Business Meeting Senate Judiciary Committee Thursday, September 24, 2020

I spoke on the Floor earlier this week about what Justice Ruth Bader Ginsburg meant to the courts, what she meant to the struggle for equality for millions of Americans, and what she meant to me. Standing just over five feet tall, she was nonetheless a giant of the law. She was also overwhelmingly good and kind. We will forever be in her debt.

It certainly is the job of this Committee to consider her replacement to the Supreme Court.  But this is not how we should do it.  Not before she is even buried and while the nation is mourning.  Not during such a polarizing time for our country, just 40 days from a presidential election.  Not at the expense of every precedent and principle this institution used to stand for.  Not when doing so requires that half of the United States Senate go back on their word, contradicting every argument they made in 2016 about the American people needing a voice during an election year vacancy.

Everyone here knows in their hearts this is wrong. 

There are so many new excuses for the Republican Party’s head-spinning about-face that they are hard to keep track of.

I’ve heard that there was an unspoken exception to the McConnell rule in 2016.  Apparently the American people do not get a voice when the White House and Senate are under the control of the same party.  Pay no attention to the fact that this contradicts everything Republicans claimed to believe ad nauseum for 10 months in 2016. 

But even this attempt at a fig leaf of institutional cover falls on its face.  If the Majority Leader’s 2016 rule to let the American people decide only applies when there is a divided government, then the unprecedented 10-month blockade of Judge Merrick Garland contradicted the confirmation of Justice Kennedy by a Democratic Senate during an election year in 1988.

Republicans now also claim there’s precedent for charging ahead, 40 days before the election.  Of course there is precedent for filling certain election year vacancies.  In fact, of the many Supreme Court nominations during the first half of presidential election years, only one was denied any process or a vote.  That was Judge Garland.  Yet, of the four vacancies during the last half of election years, exactly zero were filled before the election.  The fact is there has never been a confirmation process like this, occurring just weeks before the election. 

I’ve also heard that Democrats are actually at fault for this rush to fill the vacancy.  Apparently that is because of how we treated prior nominees of Republican presidents, dating back to Judge Bork in 1987.  I am not going to litigate every perceived wrong, except to note that that Judge Bork would have been confirmed but for the fact that he lost Republican votes.  However, this argument that Democrats are at fault here collapses under its own weight, as Republicans made commitments not to fill election year vacancies that post-dated all of the Democrats’ alleged wrongs. 

Another reason Republicans claim that the Committee needs to race to confirm a nominee is that otherwise the Supreme Court could end up in a 4-4 split decision involving a disputed election, resulting in a so-called constitutional crisis.  Oddly enough, I don’t recall hearing this concern from Republicans when they kept the Supreme Court at eight justices for more than a year, through a presidential election, when blocking Judge Garland.  In reality, in such a scenario the circuit court decision would stand.  That’s not a constitutional crisis.

Worse, the President is now taking this argument to a truly disturbing level.  He is explicitly suggesting that he needs nine justices seated before the election so that the Court will side with him when he inevitably claims election fraud.  That is, the President is rushing to fill this vacancy to ensure that the Court will toss out ballots to win him the election when he raises his usual, baseless allegations of voter fraud.  Yesterday the President even refused to promise a peaceful transfer of power unless such votes are thrown out.  There can be no doubt that the President is counting on his nominee to help deliver him the White House from behind the bench.  That alone will result in a crisis of legitimacy for the Court — and possibly for the republic — with unfathomable consequences.

All of this leads to one conclusion: Republicans are rushing with lightning speed to fill this vacancy because they have the power and votes to do so, precedent and principle be damned.

Yet there is one principle that has always been recognized by both parties:  This institution only functions if we keep our word.  That is a principle that we should all cherish.  And one that should not be disregarded so easily.  When half of the Senate decides that keeping our word is no longer important, we are truly in a dark place, and are headed to only darker places still.

Our nation is divided.  It is suffering from a pandemic that has taken more than 200,000 lives.  The Senate could work to heal the country, and to respond to the pandemic to save lives and help those who are struggling.  But we are doing none of that.  Instead, Republicans are using their majority to race to confirm a nominee that the President himself has told us will support stripping healthcare protections from Americans.  Oral arguments in the Republican-led lawsuit to overturn the ACA and end protections for preexisting conditions are just one week after the election.  If all goes to plan, the nominee will be the deciding vote and finish from behind the bench what Republicans have failed to accomplish from the halls of Congress, resulting in millions of Americans losing healthcare protections.

I know well these words will fall on deaf ears.  Yet subverting Senate norms and basic decency and fairness in the raw pursuit of power is deeply corrosive to this Committee, to the Senate, to the Judiciary, and to our very system of government.  So it’s simply too important for me to just shrug my shoulders and give up on this institution.  I urge my colleagues to change course.