Iowa Senator Charles (“Chuck”) Grassley, the current Chair of the Senate Judiciary Committee, is following the dictates of the Senate Majority Leader and his fellow Republican, Mitch McConnell, to not do anything with respect to President Obama’s Supreme Court nomination of Merrick Garland. Grassley’s conduct with respect to this nomination stands in sharp contrast to the rational argument for the nomination recently offered by President Obama as discussed in a prior post and in the White House’s website for the nomination.
Grassley started out this “do-nothingism” on what was a high note for him. Immediately after the announcement of the Garland nomination Grassley said “Article II, Section 2 [of the Constitution grants] the power to nominate an individual to the Supreme Court . . . to the President and authority is given to the Senate to provide advice and consent. Nowhere in the Constitution does it describe how the Senate should either provide its consent or withhold its consent.” In addition, according to the Senator, “A majority of the Senate [the Republicans] has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year.”[1]
Grassley, therefore, has not submitted any questionnaire to the nominee, has refused to schedule any hearing on the nomination and has promised not to submit the nomination for a vote by the entire Senate. In addition, Grassley initially even refused to extend the courtesy of meeting with Judge Garland. Subsequently, however, Grassley said he would meet with Garland to tell him why Grassley was not supporting the nomination.[2]
Grassley Speech on Senate Floor
On April 5, Grassley escalated his obstructionism by an intemperate speech on the Senate floor criticizing Chief Justice Roberts for saying, 10 days before the death of Associate Justice Scalia and thus before the controversy over the Garland nomination: “When you have a sharply divided political divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. You know if the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some members of the public to think, well, you must be identified in a particular way as a result of that process.” [3]
According to Grassley, “the Chief Justice has it exactly backwards. The confirmation process doesn’t make the Justices appear political. The confirmation process has gotten political precisely because the court has drifted from the constitutional text, and rendered decisions based instead on policy preferences. In short, the Justices themselves have gotten political. And because the Justices’ decisions are often political and transgress their constitutional role, the process becomes more political.”
“In fact, many of my constituents believe, with all due respect, that the Chief Justice is part of this problem,” added Grassley. “And contrary to what the Chief Justice suggested, a major reason the confirmation process has become more divisive is that some of the Justices are voting too often based on politics and not on law. If they’re going to be political actors after they’re confirmed, then the confirmation process necessarily will reflect that dynamic.”
This Grassley speech also criticized Roberts for trying to counter the perception by some Americans that the Court has become politicized. Said the Senator, “I think he is concerned with the wrong problem. He would be well served to address the reality, not perception, that too often there is little difference between the actions of the court and the actions of the political branches. So, physician, heal thyself.”
Reacting to this speech, Jeffrey Toobin of the New Yorker, said this speech “was close to breathtaking in its intemperate incoherence.” It included an “extended attack on Chief Justice John Roberts, who had recently expressed the unexceptional view that the Court should stay out of politics as much as possible.” According to Grassley, “The confirmation process has gotten political precisely because the Court has drifted from the constitutional text and rendered decisions based instead on policy preferences.” Presumably Grassley was referring to two cases upholding the Affordable Care Act that were written by Roberts.
An editorial in the Baltimore Sun had similar words of condemnation. It said that Grassley’s argument was “infantile” and “allows Mr. Grassley or any other self-appointed expert on constitutional law to make a similar claim every time a justice interprets the law in a manner that is not lock-step with the critic’s own. . . . Shame on Senator Grassley for suggesting that Justice Roberts has somehow betrayed the institution when it is the judiciary chairman who seems to be bent on rewriting the Constitution — not only to limit President Barack Obama’s authority to fill a court vacancy but now to imply that the chief justice has somehow sabotaged the court. . . . Iowa voters, take note: Your six-term senator deserves to be put out to pasture, if only for sheer soft-headedness.”[4]
Grassley Op-Ed in Des Moines Register
On April 10, in reaction to a Des Moines Register editorial objecting to the Senate’s obstruction of the nomination and probably to Iowa voters objecting to his “do-nothingism,” Grassley published an op-ed in that newspaper” to defend his position.[5]
He asserted that it was absurd to argue that somehow “the federal judiciary is debilitated without a ninth Supreme Court justice for a brief period of time. As the [changing] numbers [of the Justices over time] make clear, the size of the court as Congress designed it over the years has frequently changed, and hasn’t left the court in disarray.” He continued, “The temporary impact of a split decision pales in comparison to the damage an election-year political brawl would cause the court and the country . . . . A nomination considered during this heated campaign season would be all about politics, not the Constitution.”
Grassley-Garland Breakfast Meeting
The Grassley-Garland meeting did happen over breakfast in the Senate Dining Room on April 12. After the one-hour breakfast, Grassley tweeted that the meeting has been “pleasant” as he explained to Judge Garland why the Senate would not be moving forward with his nomination. Later the Senator’s staff released a statement: “The meeting was cordial and pleasant. As he indicated last week, Grassley explained why the Senate won’t be moving forward during this hyper-partisan election year. Grassley thanked Judge Garland for his service.” [6]
Grassley ‘s Reaction to President Obama’s Statement About the Nomination
Later that same day, April 12, the Senator released a statement to be made on the Senate floor in response to President Obama’s comments at the University of Chicago Law School that were discussed in an earlier post.[7]
“[U]nlike the President, I think it’s a bad thing that there’s politics in judicial decision-making these days. Politics in judicial rulings means that something other than law forms the basis of those decisions. It means the judge is reading his or her own views into the Constitution. Unlike the President, I believe the biggest threat to public confidence in the court is the justices’ willingness to permit their own personal politics to influence their decisions. “
According to Grassley and contrary to the President, “what’s in a judge’s ‘heart,” or their personal “perspective [and] ethics’ have no place in judicial decision-making” and ‘is totally at odds with our constitutional system. We are a government of laws and not a government of judges.”
Said Grassley, “Politics belongs to us—it’s between the people and their elected representatives. It’s important that judges don’t get involved in politics. That’s because, unlike senators, lifetime-appointed federal judges aren’t accountable to the people in elections. It’s also because when nine unelected justices make decisions based on their own policy preferences, rather than constitutional text, they rob from the American people the ability to govern themselves.”
Conclusion
A negative assessment of the obstructions to the Garland nomination by Chairman Grassley and other Republican Senators has been provided by 15 former presidents of the American Bar Association (ABA) and by this blogger.
The ABA leaders asserted in a letter to Senate leaders that “there is no election-year exception” to the Senate’s advice and consent responsibilities in the Constitution, that Chief Judge Merrick Garland is “one of the most outstanding judges in the country” and that leaving the seat vacant “injects a degree of politics into the judicial branch that materially hampers the effective operation of our nation’s highest court.” Therefore, say the bar leaders, “The president has fulfilled his constitutional duty, and it is time for the members of the United States Senate to fulfill theirs by holding a fair hearing and timely vote.”[8]
Grassley’s previously cited op-ed made what, in this blogger’s opinion, is an absurd argument. He contended that with a vacancy on the Court this election year, “the American people have a unique opportunity to engage in a serious discussion about the meaning of our Constitution and the way justices read it.” So far there has not been any such serious discussion of this or any other issue and it is unrealistic to expect that there will be any difference during the remaining six-plus months of this election.
Moreover, Grassley who is not an attorney and who, to my knowledge, has never studied constitutional law, proceeds from an over-simplistic view of how cases present constitutional questions and how courts resolve them. He also ignores the Senate’s own interpretation of the relevant constitutional provisions by its consistent practice of holding hearings and votes on nominations even in election years. Finally Grassley errs in suggesting that issues of constitutional law should be submitted to the average voter, similarly unversed in constitutional law. Instead the constitutional system submits selection of judges to the President and the Senate, neither of which originally was elected directly by the people.[9] This system of judicial selection is one way to preserve the independence of the judiciary.
Although I now live and vote in Minnesota, I am a native Iowan who obtained education in the public schools of the Iowa town of Perry and at the state’s Grinnell College. I, therefore, wrote to Senator Grassley on March 20, 2016. After reciting my Iowa background, I stated:
- “I have long believed that most Iowans were reasonable, fair-minded people and that their elected representatives reflected this admirable trait.”
- “You, however, disappointingly have dispelled this belief by your enlistment in the Republican Senate leadership campaign to deny a hearing and a Senate vote by the Senate Judiciary Committee and the full Senate on advising and consenting to President Obama’s nomination of Judge Merrick Garland to the United States Supreme Court.”
- “In so doing, you ignore that in 2012 President Obama won reelection for a term of office that does not end until January 20, 2017 with a popular vote of 65.9 million, which was nearly 5.0 million more votes than those received by the Republican presidential candidate, Mitt Romney. You also ignore that under Article II, Section 2 of the U.S. Constitution the President has the power and the duty to “nominate . . . Judges of the supreme Court” and that the Senate has the power and duty to provide its “Advice and Consent” to such nominations.”
- “Remember this is the Senate Judiciary Committee, not the Republican Judiciary Committee nor “your” Judiciary Committee.”
- “I hope during this Senate recess that your Iowa constituents will voice similar views to you and that you change your position on this important issue and authorize the Judiciary Committee to proceed with its consideration of this nomination.”
To date I have not received any response to this letter from the Senator.
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[1] Grassley, Grassley Statement on the President’s Nomination of Merrick Garland to the U.S. Supreme Court (Mar. 16, 2016)
[2] Reuters, Senator Grassley to Meet Garland Despite Opposition to Nominee, N.Y. Times (April 4, 2016); Shear, Meeting Merritt Garland to Tell Him Why G.O.P. Won’t Hold Hearings, N.Y. Times (April 4, 2016).
[3] Grassley, Grassley Floor Statement on the Public Perception of the Supreme Court (April 5, 2016); Assoc. Press, Capitol Hill Buzz: Grassley Takes on Chief Justice Roberts, N.Y. Times (April 5, 2016); Toobin, The Supreme Court Extremism of Clarence Thomas and Chuck Grassley, New Yorker (April 8, 2016).
[4] Editorial, Grassley v. Roberts, Baltimore Sun (April 10, 2016).
[5] Grassley: Grassley: Sky won’t fall with one less justice, Des Moines Register (April 10, 2016).
[6] Herszenhorn, Senator Grassley and Judge Garland Meet, and Rehash the Obvious, N.Y. Times (April 12, 2016);Reuters, Senate Judiciary Chairman Grassley Tells Garland No Hearings, N.Y. Times (April 12, 2016); Assoc. Press, Senate Judiciary Chair Grassley Has Breakfast with Garland, N.Y. Times (April 12, 2016).
[7] Grassley, The Supreme Court and the Remarks of President Barack Obama at the University of Chicago (April 12, 2016).
[8] Assoc. Press, Ex-American Bar Association Chiefs Push for a Vote on Garland, N/Y. Times (April 11, 2016); Mascaro, Top GOP senator meets Obama’s Supreme court pick to tell him there will be no vote, Chic. Tribune (April 12, 2016).
[9] U.S. Senators were not elected by popular vote of the people until 1913 with the adoption of the Seventeenth Amendment to the U.S. Constitution requiring such method of election. (U.S. Senate, Direct Election of Senators.) The President and Vice President, originally and still true today, are not elected by popular vote, but instead by electors in the Electoral College. And the first time there was a popular vote for electors was in 1824 with the procedure for the Electoral College established by the Twelfth Amendment to the Constitution that was adopted in 1804.
