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Split Court ‘Handcuffs’ Law Enforcement, Democrats Say

Senators highlight 3 areas where a 4-4 decision could cause chaos

Senate Minority Leader Harry Reid has been imploring GOP senators to consider Merrick Garland's nomination. (Bill Clark/CQ Roll Call)
Senate Minority Leader Harry Reid has been imploring GOP senators to consider Merrick Garland's nomination. (Bill Clark/CQ Roll Call)

A divided Supreme Court could ‘handcuff’ law enforcement, Senate Democrats argued Thursday, as part of their effort to convince Republican senators to consider the president’s Supreme Court nominee.  

report released by the Democrats’ policy and communications arm laid out three areas where they believe chaos looms for law enforcement in case of a tied vote, which would uphold divided lower-court decisions and create a patchwork of laws. The areas range from law enforcement’s right to access cell phone information to a defendant’s right to a jury trial.  

Justice Antonin Scalia’s death in February left an equally divided Supreme Court, with four justices appointed by Democratic presidents and four by Republicans.  

“There are at least three major cases that, if rendered by 4-4 decisions, could create chaos and confusion,” New York Sen. Charles E. Schumer said on a conference call. “In short, the 4-4 court could handcuff law enforcement.”  

[Deadlocked Supreme Court Gives Win to Labor Unions ]  

President Barack Obama nominated Chief Judge Merrick Garland  of the D.C. Circuit Court of Appeals to fill the court’s vacancy. But GOP senators, led by Senate Majority Leader Mitch McConnell of Kentucky, have vowed not to consider the nomination until after the November presidential election.  

They have argued that the American people should have a say in the direction of the court. Democrats have accused Republicans of shirking their constitutional responsibility to provide advice and consent on the president’s nominee.  

“We need to do our job,” said Delaware Sen. Thomas R. Carper, ranking member on the Homeland Security and Governmental Affairs Committee. “We also need to make sure that we’re not playing politics with the Constitution.”  

The report highlighted three cases that Schumer said were “very likely” to come before the high court soon, though none were listed among the cases the Supreme Court has granted for arguments this term.  

Lower courts have been divided in United States v. Graham, a California case relating to whether law enforcement needs a warrant to access cell phone location information.  The Democratic report also pointed to cases over compelling a private company to decrypt a cell phone, and to Hebert v. United States, a case related to sentencing and the right to a trial by jury.  

“A year is a lifetime in the course of a criminal investigation,” said Steven Dettelbach, a former U.S. attorney in Ohio. “[Investigators] need to know what the rules of the road are to do their jobs. … Citizens are also entitled to know what their rights are.”  

The report is part of a broader effort by Senate Democrats to push their Republican colleagues to act on Garland’s nomination. Since Scalia’s death, the court has reached a 4-4 decision in three cases, including a high profile one relating to union dues .  

Garland is continuing to make his own case to senators. He was on Capitol Hill again Thursday, meeting with Republican Sen. John Hoeven of North Dakota, and Democratic Sens. Robert Menendez of New Jersey and Tim Kaine of Virginia. So far, Garland has sat down with 37 senators, including 10 Republicans.

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