Senator Chuck Grassley’s Outrageous Conduct Regarding the Supreme Court Nomination of Merrick Garland 

 

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.

====================================

[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.

 

 

 

Proposals for Changing the U.S. Constitution

The New York Times in its “Room for Debate” feature invites knowledgeable outside contributors to discuss news events and other timely issues. The feature also solicits comments on the topic from readers.

The feature’s July 9th topic is suggestions for amending the U.S. Constitution. Ten professors of history and law started the conversation with their suggested constitutional changes.

Contributors’ Comments

Direct Election of President. Article II, Section 2 provides for election of the president by an electoral college. Alexander Keyssar, the Stirling professor of history and social policy at Harvard’s Kennedy School, suggests abolishing the electoral college and having the president (and vice president) directly elected by the national popular vote.

He says the “concerns that prompted the Founding Fathers to adopt [the current] . . .  system — a distrust of popular elections, worry that the people would be unfamiliar with national candidates, a desire to reinforce the great constitutional compromises between large states and small states, slave states and free states” are no longer valid.

In addition, Keyssar points out that we have learned about “shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril.”

As indicated below, I support this proposal.

Qualifications for Office of President. The Constitution’s Article II, Section 4 establishes the following qualifications for the presidency: “a natural born citizen,” at least 35 years old and a resident of the U.S. for at least 14 years. Akhil Reed Amar, a professor of law and political science at Yale University, proposes this be changed to make eligible “those American citizens who happen to have been born abroad to non-American parents — and who later choose to become ‘naturalized’ American citizens.” This would be consistent with the overall historical trend of increasing equality and with the current practice in the 50 states.

I am indifferent on this proposal.

Federal Judges Tenure. The Constitution in Article III, Section 1 now provides that federal judges hold office during “good behavior,” which in practice has meant for life absent voluntary retirement. Jamal Greene, a professor of law at Columbia Law School and a former clerk for U.S. Supreme Court Associate Justice John Paul Stevens, says “In a democracy, no one person should wield so much power for so long.” To solve this problem, Greene endorses a proposal by Professors Steven Calabresi and James Lindgren for Supreme Court appointments with non-renewable 18-years terms, with one new justice every odd-numbered year.

As indicated below, I support this proposal.

Re-emphasize that Treaties Are Part of the Supreme Law of the Land. Under Article VI, Section 2 of the Constitution, “all treaties made, or which shall be made, under the authority of the United States, shall be [part of] the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution of laws of any State to the contrary notwithstanding.” However, as pointed out by Jenny S. Martinez, the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law Schoolthe U.S. Supreme Court has held that certain treaties were not enforceable against the states. Therefore, she suggests that this provision be re-emphasized in some way.

I agree that treaties under the existing Constitution are part of the supreme law of the land and that they should bind states. There, however, is no specific proposed amendment to react to.

Changing the Process for Amending the Constitution. Article V of the Constitution provides two methods of amending the Constitution: (i) specific proposed amendments adopted by two-thirds of each chamber of Congress plus ratification by three-fourths or 38 of the states; or (ii) a call for a constitutional convention by two-thirds or 34 of the states, whose proposed amendments are ratified by three-fourths or 38 of the states. The latter method (constitutional convention), has never been used, and Michael Rappaport, the Darling Foundation professor of law at the University of San Diego and the director of its Center for the Study of Constitutional Originalism, believes that this non-use “means that Congress has a veto on all amendments and therefore no amendment that Congress opposes, including necessary reforms of Congress’s power, can be enacted.”

Therefore, Rappaport proposes that the Constitution be changed “to eliminate the possibility of a runaway convention.” The best way, he says is dispensing with “a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.”

Rappaport has a valid objection to the present constitutional scheme, and I could accept a proposal that would allow three-fourths of the states to propose specific amendments, but would still require a two-thirds vote by each house of the Congress to adopt an amendment.

Emphasize the 10th Amendment’s Limits on Federal Government’s Powers. Under Article I, Section 8 of the Constitution, the federal government has certain specified powers, and the Tenth Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

According to Elizabeth Price Foley, the holder of the Institute for Justice Chair in constitutional litigation at Florida International University College of Law, these principles are important for liberty. As the Supreme Court unanimously stated in Bond v. United States (2011), “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

She believes that the existing Constitution is sufficient on this point so long as it is followed by the courts, but is open to amendment to restore certain powers to the state and like Michael Rappaport endorses the suggestion that the states have the right to propose federal constitutional amendments.

Although as just stated, I support giving the states a right to propose specific amendments, I do not favor any amendments that seek to diminish the power of the federal government. In this age of globalization, it is unwise to emphasize states over the federal government.

Narrow Congress’  Power Over  Interstate Commerce Power. As discussed in prior posts before and after the June 28, 2012, Supreme Court decision regarding the Affordable Care Act, the power of Congress under Article I, Section 8(3) to “regulate commerce . . . among the several States” has been interpreted by the Court to encompass intrastate commerce that has a substantial effect on interstate commerce.

Consistent with the views of Professor Foley, Randy E. Barnett, the Carmack Waterhouse professor of legal theory at Georgetown Law Center and one of the attorneys challenging the constitutionality of the Affordable Care Act in the Supreme Court, has proposed the following amendment that he says essentially returns the clause to its original meaning:

  • “The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
I oppose this suggestion for the reasons stated in my prior posts.

Revising the First Amendment. The First Amendment to the Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .” Pauline Maier, the William Rand Kenan Jr. professor of American history at M.I.T, says that this language was a revision of a more expansive version prepared by James Madison. She, therefore, suggests returning to the following Madisonian version:

  • “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed. The people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

This wording, like most of the first eight amendments, Msier believes, affirms basic rights in general terms, not as restrictions on the federal government. It also would undermine the Supreme Court’s decision about corporate speech in the Citizens United case.

I support this proposed amendment.

Delete the Second Amendment’s Right To Bear Arms. The Second Amendment to the Constitution provides that “the right of the people to keep and bear arms, shall not be infringed.” Melynda Price, an associate professor at the University of Kentucky College of Law, proposes the deletion of this right because of the amount of gun violence in the U.S.

I like the spirit of this proposal, but would have to evaluate specific language for such a change.

Clarify the Eighth Amendment’s Ban on “Cruel and Unusual Punishment.” The Eighth Amendment to the Constitution states, “cruel and unusual punishments [shall not be] inflicted.” Rachel E. Barkow, the Segal Family professor of regulatory law and policy and the faculty director at the Center on the Administration of Criminal Law at New York University, suggests this be clarified to “specifically state that excessive terms of incarceration are prohibited, just as it bans excessive [bail and] fines.” In addition, she says , it “should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge” and “insist that legislatures create a record showing that they considered empirical evidence about the law’s likely impact.”

I support this proposal.

Readers’ Comments

Readers are invited to add their comments, and I made the following suggested constitutional changes.

1. Outlaw Senate Filibuster. To require 60% of the Senators to agree in order to do almost anything is outrageous. It should only be 51% for most issues. Earlier I called the filibuster part of the abominable rules of the Senate; another post discussed revisions to the rule; and yet another post talked about additional attacks on the filibuster.

2. Change Weight of Senate Votes. Based on population, each Senator from Wyoming would have 1 vote, for example, but each Senator from California would have 66 votes. This approach would produce a total Senate vote of 1,094 based on the total U.S. population in 2010. The weightings would be changed every 10 years with the new census.

3. Change Term of House Representatives. Change the term from two years to four years to coincide with the presidential election.

4. Direct Election of President and Vice President. I agree with Professor Keyssar that the U.S. should institute direct election of the U.S. President by the national popular vote and abolish the electoral college.

5. Eliminate Life Tenure for Federal Judges. Impose a term limit on all federal judges, including Supreme Court Justices. One solution, perhaps by statute, would be to amend the current statute on judicial retirement (28 U.S.C. § 371) to make such retirement mandatory on reaching the current age and service requirements. I essentially concur in the comments of Professor Greene.

Many years ago I made other suggestions for constitutional changes in a virtual constitutional convention. More recently I have discussed what I regard as our antiquated or imbecilic Constitution.

“Our Imbecilic Constitution”

In the late 18th century debate over ratification of the new U.S. Constitution, the authors of “The Federalist Papers” mocked the “imbecility” of the weak central government created by the Articles of Confederation.

Now in the early 21st century we the People of the U.S. need to recognize that our federal Constitution is “imbecilic.” This is the contention of Sanford Levinson, Professor of Law and Government at the University of Texas, Austin, in a post entitled “Our Imbecilic Constitution” that was published in the May 29th issue of the New York Times.

Levinson argues that the U.S. Constitution plays a major role in generating the current dysfunctional U.S. governmental system. He begins his critique “with the Senate and its assignment of equal voting power to California and Wyoming; Vermont and Texas; New York and North Dakota. Consider that, although a majority of Americans since World War II have registered opposition to the Electoral College, we will participate this year in yet another election that ‘battleground states’ will dominate while the three largest states will be largely ignored.”

Levinson also recommends making it easier to amend the U.S. Constitution. This could include a debate on allowing amendments by voters at the ballot box.

Other possible topics for debate, he says, include (a) allowing a newly elected president to appoint 50 members of the House of Representatives and 10 to the Senate; (b) requiring a super-majority (say seven of nine) of the Supreme Court Justices to invalidate national legislation; and (c) changing the way in which federal judges are selected.

This article strikes some of the same criticisms of the U.S. Constitution as one of my posts.