Democrats Warn Against Shorthanded High Court

     WASHINGTON (CN) – A divided, eight-justice Supreme Court could leave Americans vulnerable to inconsistent law enforcement practices, Senate Democrats claim in a new report pressuring Republicans to confirm high court nominee Merrick Garland.
     Sen. Chuck Schumer, D-N.Y., joined with Sen. Bob Carper, D-Del., and two former U.S. attorneys in a press call Thursday to warn that an understaffed U.S. Supreme Court would not be able to make rulings on key cases involving encryption, cellphone tracking and the Sixth Amendment right to a jury.
     “What we do know for sure is that there are at least three cases, that if rendered by 4-4 decisions, could create chaos and confusion across the country when it comes to law enforcement,” Schumer said.
     The report released Thursday specifically highlights United States v. Graham, a Fourth Circuit case that held the government must obtain a warrant before getting a defendant’s cellphone location data from a phone company.
     As Timothy Heaphy, former U.S. Attorney for the Western District of Virginia, noted in the press call, the 10th and 11th Circuits have separately said a warrant is unnecessary in such cases.
     “Right now, it’s uncertain, because the circuits have split, as to what law enforcement needs to show in advance in order to get that historical cellphone information,” Heaphy said.
     The Democratic Policy & Communications Center (DPCC) report also mentions Hebert v. United States, a Sixth Amendment case involving a sheriff’s deputy who pleaded guilty to stealing the wallet of a car accident victim.
     After Hebert pleaded guilty and before he was sentenced, a lower court judge used a special hearing to determine that Hebert also murdered the victim, even though prosecutors never charged him with murder.
     Hebert was sentenced to 92 years in prison “based on a fact that was found by a judge rather than by a jury beyond a reasonable doubt,” according to the DPCC report.
     In addition, the report points to the broad topic of encryption as another area needing a full Supreme Court, specifically mentioning Apple’s recent fight with the FBI over whether it should have to create what some called a back door into a phone belonging to one of the shooters in last year’s mass shooting in San Bernardino, Calif.
     None of the cases mentioned in the report are set for argument before the Supreme Court, though Hebert submitted a petition for writ of certiorari to the court last month. Schumer said it is “very likely” the cases will be considered this term.
     “It is time for the U.S. Senate to do its job and by fully and fairly considering the nomination of Merrick Garland to the United States Supreme Court,” the DPCC report states. “The American people deserve to have a fully functioning federal government. Under our Constitution, that includes a Supreme Court which can serve as the final arbiter of law.”
     The former U.S. attorneys who joined Schumer and Carper said not having strong rulings on these cases would leave inconsistent rules across the country that could harm law enforcement’s ability to develop plans for their investigations.
     “Without a fully staffed Supreme Court and someone as distinguished as Judge Garland stepping in to help navigate these emerging issues, officers don’t know the rules and that leads to paralysis, to standing down, to the inability to do their jobs with the guidance that they need,” Heaphy said.
     Steve Dettelbach, another former U.S. Attorney for the Western District of Virginia, specifically praised Garland, calling him an “important” and “potent” voice on the issues highlighted in the DPCC report.
     “It’s not just always the notion of a 4-4 tie,” Dettelbach said. “Each justice on the Supreme Court brings an important perspective and expertise, and right now Judge Garland’s is especially important to us.”
     Senate Republicans have formed a blockade against President Barack Obama’s nominee for the Supreme Court seat left vacant by the death of Justice Antonin Scalia in February.
     Senate Judiciary Committee Chair Sen. Chuck Grassley, R-Iowa, has vowed not to hold hearings on Garland, and Republican leadership insists its caucus is united in not giving Garland’s nomination a vote on the floor.
     Republicans say the next president, not Obama, should be the one to fill the seat after the November elections. Democrats have launched a sustained campaign to chip away at Republican support for the move and several Republicans, including Grassley, have taken meetings with Garland in recent weeks.
     Grassley’s spokeswoman Beth Levine said in a statement that “Democrats are doing backflips to try to manufacture a crisis where there is none.”
     “Now they’re pointing to cases that the court hasn’t agreed to hear and couldn’t hear this year. In fact, the court’s only been asked to hear one of these cases—among the thousands of requests it receives every year,” Levine wrote via email. “In any event, the court is equipped to handle an occasional 4-4 case. And as Biden said, the cost of having to re argue 3 or 4 cases is far outweighed by the damage the court and nation would suffer by moving forward in this hyper partisan atmosphere.” (Emphasis in original.)
     The office of Senate Majority Leader Mitch McConnell, R-Ky., did not respond to a request for comment on the report.

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