September 14, 2016

With GOP's Obstruction of Garland at an Unprecedented 182 Days, Udall Proposes Rules Change to Fix Broken Senate

Change would prevent senators from blocking judicial nominees to score political points; Would require Senate vote after 180 days

WASHINGTON - In a speech on the Senate floor, U.S. Senator Tom Udall announced that he will introduce a change to the Senate rules that would prevent senators from blocking votes on judicial nominees who have waited 180 days for confirmation. Today marks an unprecedented 182 days since President Obama nominated Judge Merrick Garland to fill the vacant seat on the U.S. Supreme Court. Senate Republicans have refused to hold hearings or a vote on Garland, leaving the Supreme Court unable to adequately address certain important subjects and denying Americans justice.

In his speech, Udall called the Republicans' refusal to hold hearings on his nomination a "stealth filibuster." He proposed a change in the rules to require all judicial nominees to receive a vote after 180 days if the Judiciary Committee has not acted on the nomination or if the nomination is pending before the full Senate.

"Judge Garland is a good American, and he's being treated unfairly," Udall said in his speech. "Many Republican Senators are so caught up in politics that they have even refused to meet with him. He's being denied a hearing in the Judiciary Committee, and the Majority Leader refuses to allow him to receive an up-or-down vote. This is unprecedented obstruction against one of the most qualified Supreme Court nominees in history."

While the Supreme Court receives significant attention, Udall emphasized that there are also dozens of vacancies on understaffed lower courts and 28 judicial nominees currently pending on the Senate's Executive Calendar. Last year, Senate Republicans confirmed the fewest judicial nominees in over 50 years - 11 for the entire year, matching the all-time record. Only 18 have been confirmed in this Congress.

Udall said this unprecedented obstruction is indicative of the need to end dysfunction so the Senate can work for the American people again, and outlined his proposal to require a vote on any judicial nomination pending for longer than 180 days.

"We've already seen the impact of a Supreme Court with eight members - cases sent back to the lower courts without decisions. The Court isn't taking cases that are likely to deadlock - some of the most important for them to decide. When we fail to do our job, the justice system suffers and the public suffers," Udall said. "We need to end the stealth filibuster of this president's nominees. No more burying nominees in committee. No more leaving them to languish on the Executive Calendar. The Senate will have to do its job. Under my rules reform, Judge Garland would have had his vote this week. Senators would do our jobs, and the voters would know where we stand."

Udall has pushed for reform of the Senate rules since he was elected to the Senate in 2008, regardless of whether he has been in the majority or minority. In 2013, he led the effort to allow executive and lower court judicial nominees to be confirmed by majority vote. In January 2015 he proposed a comprehensive package of rules reforms, including to require a "talking filibuster," meaning senators wishing to block legislation would have to do so by speaking on the Senate floor.


Below are Udall's remarks as prepared for delivery:

This week marks a sad milestone for the U.S. Senate - a milestone of inaction, of obstruction, of failure. This week marks six months since President Obama nominated Judge Merrick Garland to the Supreme Court.

President Obama did his job, his constitutional duty. And Judge Garland should have been confirmed by now. He's eminently qualified. He's a dedicated public servant and a respected judge.

Instead, Judge Garland hasn't even received a hearing. Today marks 182 days since his nomination, and not even a hearing. In the last 40 years, the average time from nomination to confirmation has been 67 days for a Supreme Court nominee, no matter which party has controlled the White House and the Senate.

We've always done our job. We've always given a president's nominees a hearing and a vote, as the Constitution requires.

After my remarks, I will formally introduce a proposal to change the Senate rules to require that any judicial nominee who has been pending for more than 180 days receive a vote.

I do not take this decision lightly, but I fear that a line has been crossed. This level of obstruction will only get worse in the years to come. We should not ever be in this situation again. I urge all of my colleagues to consider this proposal fairly, without partisan interest.

I had hoped that the Senate would act on Judge Garland's nomination. I met with him in May. It was a good meeting. We talked about some areas of law of particular importance to New Mexicans: campaign finance reform, Tribal law, interstate water issues, and other topics. He is well versed and well informed, but he is not pre-judging any particular subject matter. And I enjoyed the opportunity to get to know him.

He is an exceptional jurist who has dedicated his life to public service - a nominee who deserves our respect and a hearing and a vote.

But for several months now, Republicans have argued that President Obama's nominee shouldn't get a vote, that this president shouldn't get the same four-year term as every other.

They argue that it's better for the Supreme Court to have a vacancy for what is likely to be more than a year.

This makes no sense. It's hurting the Court and the American people, and it leaves a highly qualified nominee in limbo.

Judge Garland has more federal judicial experience than any other Supreme Court nominee in history. With many judges, that would be a problem - too many controversial opinions or decisions overturned, but Judge Garland's record is exceptional.

He has spent nearly 20 years on the DC Circuit - a court often referred to as the second most powerful in the country. He has participated in over 2,600 merits cases and 357 opinions. He's heard many controversial cases, yet the Supreme Court has never reversed one of his written opinions.

Judge Garland's record demonstrates an incredible ability to build consensus on a wide range of difficult subjects, and his opinions show that he decides cases based on the law and the facts. These are traits that will serve him well as a Supreme Court Justice, and more importantly, that will serve all plaintiffs and defendants who come before him.

Judge Garland's legal career before joining the bench is equally impressive. He was a federal prosecutor and later served as a high-ranking Justice Department attorney. At Justice, he oversaw major investigations and prosecutions. He led the prosecution of the two Oklahoma City bombers and supervised the prosecution of the Unabomber.

But he is more than just an exceptional judge and lawyer. He's a person of high moral character. For the last 18 years, he has tutored students at a local elementary school. He speaks to law students about public service careers, and he regularly speaks about the importance of pro bono legal services and access to the courts.

Judge Garland is a good American, and he's being treated unfairly. Many Republican Senators are so caught up in politics that they have even refused to meet with him. He's being denied a hearing in the Judiciary Committee, and the Majority Leader refuses to allow him to receive an up-or-down vote.

This is unprecedented obstruction against one of the most qualified Supreme Court nominees in history.

My Republican colleagues will say it's not about Judge Garland. They say President Obama - who still had over 10 months in office at the time he made the nomination - had no right to fill the vacancy. They argue that it's the next president's job.

But we're talking about a vacancy that will have been open for almost a year before the next President takes office. This defies common sense and historical precedent.

Sadly, obstruction in the Senate is the new normal. Judge Garland is just the most glaring example.

A Supreme Court vacancy gets a lot of attention, but our lower courts have been understaffed for years. Right now, there are 12 vacancies on the appellate courts. Our district courts have 75 vacancies, and 33 of those are considered judicial emergencies because the court is so short-staffed.

There are many nominees we could vote on today: 28 judicial nominees are on the Executive Calendar, voted out of committee with bipartisan support.

But Republicans have slowed the confirmation process to a standstill.

Last year, Senate Republicans confirmed the fewest judicial nominees in more than 50 years - 11 for the entire year, matching the all-time record. Only 18 have been confirmed in this Congress.

Let's compare that to the last two years of the Bush administration with a Democratic majority. The Senate confirmed 68 judges.

All of this gets back to something I've discussed since joining the Senate - the need to end dysfunction so the Senate can work for the American people again.

I pushed for reform of the Senate rules in the last three Congresses, and we did change the rules to allow majority votes for executive and judicial nominees to lower courts.

That was a historic, and much-needed change. Without it, the judicial system would be even more over-burdened. But even that change does no good if the judges remain blocked.

The Majority Leader is using the power over the calendar as a stealth filibuster, and that is what is happening in this Congress. The line gets longer and longer - of perfectly qualified nominees denied a vote, denied even to be heard.

Now a seat on the Supreme Court is empty and the Majority Leader is actually arguing that it should stay empty for over a year in the hopes that maybe a President Trump will be able to fill all these vacancies that came up during President Obama's term.

This isn't governing. It's a temper tantrum and a power grab.

Is it any wonder that the American people are frustrated? Fed up with political games, with obstruction in the Senate, with special deals for insiders and campaigns that are being sold to the highest bidder.

They see this obstruction as just another example of how our democracy is being taken away.

I believe it's so bad that we need a change in the Senate rules to address our broken judicial confirmation process. My suggestion is simple. If the Judiciary Committee hasn't held a vote on a nominee within 180 days from the nomination, then he or she is discharged and becomes the pending business of the Senate and gets a cloture vote.

It would be the same for nominees voted out of committee but blocked by the Majority Leader's inaction. After 180 days, they get their vote.

And let me be clear. If this rule is adopted, 180 days should not become the normal time period to confirm nominees. It is the longest it will take, but there is no reason the Senate shouldn't act quicker, as it has throughout history.

We need to end the stealth filibuster of this president's nominees. No more burying nominees in committee. No more leaving them to languish on the Executive Calendar. The Senate will have to do its job.

Under my rules reform, Judge Garland would have had his vote this week. Senators would do our jobs, and the voters would know where we stand.

Many other nominees would finally get their votes. There are currently seven appellate court nominees who have been waiting more than 180 days. There are 30 district court nominees, including five judicial emergency districts.

Some critics may argue that the tables will be turned. Democrats will object to a Republican nominee.

Well if a nominee is truly objectionable, then any senator - Democratic or Republican - should convince a majority of the Senate to vote against confirmation. That's how democracy works, and it's time to get our courts fully staffed so our judicial system can do its work.

We've already seen the impact of a Supreme Court with eight members - cases sent back to the lower courts without decisions. The Court isn't taking cases that are likely to deadlock - some of the most important for them to decide. When we fail to do our job, the justice system suffers and the public suffers.

It's time for Senate Republicans to do their job. The Constitution gives the president the responsibility to nominate Justices to the Supreme Court. And the Senate's job is to consider that nominee. The Constitution doesn't say, "Do your job, except in an election year."

The president has done his job by nominating Judge Garland. Many Republicans expected him to select a highly controversial nominee. Someone to energize the liberal base in an election year.

But the president took his responsibility seriously. He selected a widely respected nominee with impeccable credentials, a man who should be easily confirmed. It's time for us to take our responsibility seriously, give Judge Garland the hearing he deserves and allow the Senate to take and up-or-down vote.

Thank you Mr. President.