June 28, 2018

Feinstein Speaks on Supreme Court Vacancy, Family Separations

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today released the following statements on family separation and the Supreme Court vacancy:

Family Separation

“The judge, the federal district judge, Dana Sabraw, is in San Diego. And what he issued was a preliminary injunction regarding the separation of families at the border. This injunction limits the separation and it orders the government to reunify families.

For parents with children under five years old, he gave the government two weeks—14 days. And for families with children over five, he gave the government 30 days to facilitate reunification. This is very good news.

I strongly believe that we need to reinforce this judgment with law. As you said, Mr. Chairman, Senators Durbin, Cruz and Tillis and I, we had one good meeting this week.

I hope we’re going to be able to move on a narrow compromise bill when the Senate returns after recess. Because Senator Tillis is here—Senator Cruz is not yet. I think we ought to look at these standards, as possibly being those that we place into law so that it is clear and distinct what the situation is.”

Supreme Court

“Yesterday the Supreme Court ended its term and as you have eloquently spoken Mr. Chairman, Justice Kennedy announced his retirement. I’d like to talk about this a little bit and submit my remarks related to the markup for the record.

As we know, Justice Kennedy was frequently a key swing vote—and often the deciding vote—on some of the most important issues facing the court and our country.

Those issues included: marriage equality, a woman’s right to privacy, protections that ensure clean air and water, basic health care for all Americans; and the fundamental right to vote.

With such an evenly divided court, it’s clear that one vote does make a big the difference. And that’s why filling Justice Kennedy’s seat is so important.

I strongly believe that the president should take his time to identify a strong consensus candidate that will not further divide this country and fan the flames of anger and anxiety that are beginning to tear people apart.

He has before him an opportunity to reach across the aisle and work in good faith to find a nominee who is within the legal mainstream and recognizes the needs to protect the rights of all Americans.

One step the president could take is to wait until after the election and for the new Congress before naming Justice Kennedy’s replacement.

In fact, when the shoe was on the other foot all the Republicans on this committee urged the Senate not to act on any nominee, stating that the American people deserve a voice in who will sit on the Supreme Court. As we all know, I’m referring to the vacancy of Justice Scalia’s seat.

If the past is prologue to the future, we should look back to February 2016 when Justice Scalia unexpectedly passed away—nine months before an election that November. His seat was held open for more than one year.

President Obama chose Merrick Garland—a man with an impeccable and unimpeachable record. He was Chief Judge on the prestigious [D.C.] Circuit. He enjoyed the support of Republicans. And he was a moderate with a reputation for independence.

Despite this, Republicans on this committee wrote a letter stating they wanted to ensure “the American people are not deprived of the opportunity to engage in a full and robust debate over the type of jurist they wish to decide some of the most critical issues of our time.” That’s what the majority side wrote.

And because of their strong belief in the need for the American people to have a say, through the election, Republicans on this committee said they were going to “exercise our constitutional authority” and not hold hearings on “any Supreme Court nominee” until after the new Congress.

So Judge Garland had no meetings, no hearings, no action taken and was left to dangle in Senate uncertainty. Again, this was nine months before the election. Today, we’re four months away from an election.

While I disagreed with those actions then, the simple fact is Republicans set a new standard with this action. And that standard should not be ignored simply because Republicans now control the White House.

Let’s look at what’s at stake. Yesterday, the court upended four decades of settled law to undercut the ability of workers to secure fair wages and quality health care.

Unions have been critical in helping working Americans bargain for fair pay. The decision is deeply concerning to those of us on this side.

Two days ago, the Supreme Court’s conservative majority ignored clear evidence of President Trump’s anti-Muslim bias to uphold the president’s discriminatory travel ban.

The conservative majority gave no weight to the fact that then-candidate Trump said that he would consider closing mosques; promoted the conspiracy theory that Muslim Americans were cheering on rooftops in New Jersey on 9/11; and called for a “shutdown of Muslims entering the country until we can figure out what’s going on.”

And three days ago, the court upheld gerrymandered congressional and state legislative districts in Texas, ignoring significant evidence that the state intentionally drew these districts to discriminate against Hispanic voters.

The court found that even if a state is found to be diluting the power of minority voters, discriminatory redistricting may stand. Let me repeat that. Even if a state is found to dilute the power of minority voters, discriminatory redistricting may stand.

And this was not the only decision to roll back voting rights, even this month. A few weeks ago, the court upheld an Ohio law that allows the state to purge eligible voters from the voting rolls — with little or no notice — if they missed voting in just one federal election.

Ohio’s law disproportionately impacts minority and low-income voters. By upholding this law, the conservative majority is failing to ensure that voting rights of all Americans are protected.

While the decisions that have been handed down and they’re important, we must also consider the cases on the horizon that will be impacted by who fills this seat.

So, our role to provide “advice and consent” has never been more essential because in case after case, we’ve seen justices on the Roberts Court pledge to uphold precedent. Everyone here in a hearing on the Supreme Court has asked questions regarding stare decisis. And everyone here has gotten the answer “Oh yes. We will uphold precedent.” Until they don’t. And that has taken place as well.

Judge Gorsuch cited the importance to uphold precedent time and time again during his nomination hearing. Yet just this week, he voted to overturn a 40-year-old precedent protecting workers. That’s Janus v. AFSCME, Abood v. the Detroit Board of Education.

With decades-old precedent being overruled and nonstop attacks on women’s constitutional rights to privacy, the Senate must ensure a rigorous review of any nominees’ record.

Protecting a woman’s right to control her own body has been a priority for me since I was elected to the Senate. And to all who care, we must remember that Justice Kennedy was the deciding vote on Planned Parenthood v. Casey, which of course, could throw into jeopardy the landmark Roe v. Wade. And the next Supreme Court Justice could overturn that landmark decision.

Millions of women across the country could be left without access to reproductive health care, dependent on this next justice. We’ve already seen laws enacted that have wiped out clinics for hundreds of miles.

Women across this country have never before been more galvanized. They’re marching. They’re are calling Congress. They’re running for office in numbers we’ve never seen before.

They deserve to have their voices heard this election. And I understand some on the other side are now trying to argue that it’s only presidential elections that matter. Respectfully, that’s ridiculous.

All of my colleagues on the other side of the aisle stressed, the Constitution provides the Senate with a key role in the nominations process. They vigorously defended the Senate’s role when Obama was in office, and it should be vigorously defended when Trump is in office.

If the Senate needed to wait nine months then, the Senate should surely wait four months now. If the American people deserved to have their voices heard then, they deserve to have their voices heard now.

I strongly believe all elections matter—not just presidential elections and I hope my colleagues will not change the standard they set when Supreme Court nominees receive a hearing simply because who sits in the Oval Office has changed.”

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