S2180 CONGRESSIONAL RECORD — SENATE April 4, 2017 chairman, a ‘‘no’’ vote in search of a CONCLUSION OF MORNING Merrick Garland’s service on the U.S. reason to vote that way. What they BUSINESS Supreme Court. The reason we are not can’t lay a glove on is the nominee’s The PRESIDING OFFICER. Morning is that Senator MCCONNELL and the record and independence—the kinds of business is closed. Senate Republicans refused us that op- things that should actually be swaying portunity. They said: No, you cannot our vote—and that is really quite tell- f vote on that. ing. EXECUTIVE SESSION Remember their logic? The logic was: If Democrats follow through on their Wait a minute. This is the last year of threat to subject this widely respected President Obama’s Presidency. Why judge to the first partisan filibuster in EXECUTIVE CALENDAR should he be able to fill a vacancy on the U.S. Supreme Court when we have the history of the Senate, then I doubt The PRESIDING OFFICER. Under an election coming soon? there is a single nominee from this the previous order, the Senate will pro- President they could ever support— That is an interesting argument. ceed to executive session to resume There are two things I am troubled ever. After all, the Democratic leader consideration of the Duke nomination, basically said as much before the nomi- with. which the clerk will report. I do believe President Obama was nation was even made. But it is not too The senior assistant legislative clerk late for our friends to do the right elected for 4 years in his second term, read the nomination of Elaine C. Duke, not for 3, which meant he had author- thing. of Virginia, to be Deputy Secretary of You know, we on this side of the aisle ity in the fourth year, as he did in the Homeland Security. third year. are no strangers to political pressure. The PRESIDING OFFICER. Under Secondly, the Republican argument We can emphathize with what our the previous order, the time until 12 ignores history. It ignores the obvious Democratic colleagues might be going noon will be equally divided in the history when we had a situation with through right now. But part of the job usual form. President Ronald Reagan, in his last you sign up for here is to do what you The minority whip. year in office, with regard to a vacancy know is right in the end. Mr. DURBIN. Madam President, I ask on the U.S. Supreme Court. There were When President Clinton nominated unanimous consent to speak as in Democrats in charge of the Senate and Stephen Breyer, I voted to confirm morning business. Democrats in charge of the Senate Ju- him. When President Clinton nomi- The PRESIDING OFFICER. Without diciary Committee, and President Ron- nated Ruth Bader Ginsburg, I voted to objection, it is so ordered. ald Reagan, a lameduck President in confirm her. I thought it was the right NOMINATION OF his last year, nominated Anthony Ken- thing to do. After all, he won the elec- Mr. DURBIN. Madam President, nedy to serve on the Court. He sent the tion. He was the President. The Presi- there is a poem that I recall, and it name to the Democratic Senate, and dent gets to appoint Supreme Court goes like this: there was a hearing before the Senate Justices. When President Obama nomi- When I was going up the stair, Judiciary Committee and a vote that nated and Elena sent him to the Court. Kagan, I led my party in working to I met a man who wasn’t there. He wasn’t there again today. You never hear that story from Sen- ensure they received an up-or-down I wish that man would go away. ator MCCONNELL. It is because it does vote, not a filibuster. I thought about that poem when I lis- not fit into his playbook as to why he We were in exactly the same position tened to the majority leader’s speech would wait for a year and refuse to give in which our Democratic friends are about how cooperative he has been Merrick Garland a hearing and a vote. today. No filibuster. No filibuster. We when it comes to Supreme Court nomi- The reasoning is obvious: Clearly he thought it was the right thing to do. It nations. The name he forgot to men- was banking on the possibility that the is not because we harbored illusions tion was Merrick Garland—Merrick electorate would choose a Republican that we would usually agree with these Garland, who was nominated by Presi- President—and that is what hap- nominees of Democratic Presidents— pened—so that a Republican Presi- dent Obama to fill the vacancy of Jus- certainly not. We even protested when dent—in this case, — tice ; Merrick Garland, then-Majority Leader Reid tried to file could fill the vacancy, not Barack the only Presidential nominee to the cloture on the Kagan nomination. We Obama. Supreme Court in the history of the talked him out of it and said it wasn’t So when I hear the speeches on the U.S. Senate to be denied a hearing and necessary. , the current floor by Senator MCCONNELL about his a vote; Merrick Garland, about whom , was the ranking bipartisan cooperation, he leaves out Senator MCCONNELL said: I will not member of the Judiciary Committee at an important chapter—the last chap- only refuse to give him a hearing and a the time. Jeff Sessions talked Harry ter, the one that brought us to this mo- vote, I refuse to even see him; Merrick Reid out of filing cloture because it ment in the Senate. Garland, who was found unanimously wasn’t necessary. We didn’t even want I look at the situation before us ‘‘well qualified’’ by the American Bar the pretext of the possibility of a fili- today, and it is a sad situation for the Association; Merrick Garland, the per- buster on the table. Senate—sad in that we have reached son who received bipartisan support for Well, that is quite a different story the point in which a Supreme Court appointment to the DC Circuit Court of from what we are seeing today, but nomination has become so political, Appeals, the second highest court in this is where our Democratic col- more so than at any time in history. the land. leagues have taken us. Will a partisan Where did the name ‘‘Neil Gorsuch’’ So when the majority leader comes minority of the Senate really prevent come from for the Supreme Court? It to the floor to talk about how coopera- the Senate’s pro-Gorsuch bipartisan came from a list that was prepared by tive he has been with previous Presi- majority from confirming him? Will two organizations: the Federalist Soci- dents when it comes to Supreme Court they really subject this eminently ety and the Heritage Foundation. nominees, he conveniently omits the qualified nominee to the first success- These are both Republican advocacy most obvious reason for our problems ful partisan filibuster in American his- groups who represent special interests this week: the unilateral decision by tory? Americans will be watching, his- and are funded by special interests. the majority leader to preclude any tory will be watching, and the future of They came up with the names and gave vote on Merrick Garland to fill the va- the Senate will hang on their choice. them to Presidential candidate Donald cancy of Justice Scalia. Trump. It was a list of 21 names. He I know Judge Garland. I have met f issued them twice—in March and in with him several times. He is a bal- September of the last campaign year— anced, moderate, experienced jurist and Neil Gorsuch’s name was on the RESERVATION OF LEADER TIME who should be on the U.S. Supreme list. The PRESIDING OFFICER. Under Court. We should not be entertaining The was created the previous order, the leadership time Neil Gorsuch this week; we ought to be in 1982. Nominally, it is an organiza- is reserved. celebrating the first anniversary of tion that is committed to originalism.

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