Enactment of the Justice Against Sponsors of Terrorism Act (JASTA) Over the Presidential Veto

As a previous post reported, from September 16, 2015, through September 9, 2016, the current Session of Congress considered and overwhelmingly adopted the Justice Against Terrorism Act (JASTA). Although neither chamber of Congress held hearings on JASTA this Session and voiced little opposition to the bill, objections to the bill were raised outside Congress, and on September 23, 2016, President Obama vetoed the bill, as was mentioned in a prior post. Thereafter Congress overrode the veto and JASTA became law, whose details were discussed in another previous post.

Now we will retreat in time and examine the president’s veto message and the congressional overriding of the veto. Another post will look at subsequent efforts to amend JASTA.

President Obama’s Veto Message

 On September 23, President Obama vetoed JASTA and returned the bill to Congress with a message stating the following reasons for the veto:[1]

  • “Enacting JASTA into law . . . would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks. As drafted, JASTA would allow private litigation against foreign governments in U.S. courts based on allegations that such foreign governments’ actions abroad made them responsible for terrorism-related injuries on U.S. soil. This legislation would permit litigation against countries that have neither been designated by the executive branch as state sponsors of terrorism nor taken direct actions in the United States to carry out an attack here. The JASTA would be detrimental to U.S. national interests more broadly, which is why I am returning it without my approval.”
  • “First, JASTA threatens to reduce the effectiveness of our response to indications that a foreign government has taken steps outside our borders to provide support for terrorism, by taking such matters out of the hands of national security and foreign policy professionals and placing them in the hands of private litigants and courts.”
  • “Any indication that a foreign government played a role in a terrorist attack on U.S. soil is a matter of deep concern and merits a forceful, unified Federal Government response that considers the wide range of important and effective tools available. One of these tools is designating the foreign government in question as a state sponsor of terrorism, which carries with it a litany of repercussions, including the foreign government being stripped of its sovereign immunity before U.S. courts in certain terrorism-related cases and subjected to a range of sanctions. Given these serious consequences, state sponsor of terrorism designations are made only after national security, foreign policy, and intelligence professionals carefully review all available information to determine whether a country meets the criteria that the Congress established.”
  • “In contrast, JASTA departs from longstanding standards and practice under our Foreign Sovereign Immunities Act and threatens to strip all foreign governments of immunity from judicial process in the United States based solely upon allegations by private litigants that a foreign government’s overseas conduct had some role or connection to a group or person that carried out a terrorist attack inside the United States. This would invite consequential decisions to be made based upon incomplete information and risk having different courts reaching different conclusions about the culpability of individual foreign governments and their role in terrorist activities directed against the United States — which is neither an effective nor a coordinated way for us to respond to indications that a foreign government might have been behind a terrorist attack.”
  • “Second, JASTA would upset longstanding international principles regarding sovereign immunity, putting in place rules that, if applied globally, could have serious implications for U.S. national interests. The United States has a larger international presence, by far, than any other country, and sovereign immunity principles protect our Nation and its Armed Forces, officials, and assistance professionals, from foreign court proceedings. These principles also protect U.S. Government assets from attempted seizure by private litigants abroad. Removing sovereign immunity in U.S. courts from foreign governments that are not designated as state sponsors of terrorism, based solely on allegations that such foreign governments’ actions abroad had a connection to terrorism-related injuries on U.S. soil, threatens to undermine these longstanding principles that protect the United States, our forces, and our personnel.”
  • “Indeed, reciprocity plays a substantial role in foreign relations, and numerous other countries already have laws that allow for the adjustment of a foreign state’s immunities based on the treatment their governments receive in the courts of the other state. Enactment of JASTA could encourage foreign governments to act reciprocally and allow their domestic courts to exercise jurisdiction over the United States or U.S. officials — including our men and women in uniform — for allegedly causing injuries overseas via U.S. support to third parties. This could lead to suits against the United States or U.S. officials for actions taken by members of an armed group that received U.S. assistance, misuse of U.S. military equipment by foreign forces, or abuses committed by police units that received U.S. training, even if the allegations at issue ultimately would be without merit. And if any of these litigants were to win judgments — based on foreign domestic laws as applied by foreign courts — they would begin to look to the assets of the U.S. Government held abroad to satisfy those judgments, with potentially serious financial consequences for the United States.”
  • “Third, JASTA threatens to create complications in our relationships with even our closest partners. If JASTA were enacted, courts could potentially consider even minimal allegations accusing U.S. allies or partners of complicity in a particular terrorist attack in the United States to be sufficient to open the door to litigation and wide-ranging discovery against a foreign country — for example, the country where an individual who later committed a terrorist act traveled from or became radicalized. A number of our allies and partners have already contacted us with serious concerns about the bill. By exposing these allies and partners to this sort of litigation in U.S. courts, JASTA threatens to limit their cooperation on key national security issues, including counterterrorism initiatives, at a crucial time when we are trying to build coalitions, not create divisions.”
  • “The 9/11 attacks were the worst act of terrorism on U.S. soil, and they were met with an unprecedented U.S. Government response. The United States has taken robust and wide-ranging actions to provide justice for the victims of the 9/11 attacks and keep Americans safe, from providing financial compensation for victims and their families to conducting worldwide counterterrorism programs to bringing criminal charges against culpable individuals. I have continued and expanded upon these efforts, both to help victims of terrorism gain justice for the loss and suffering of their loved ones and to protect the United States from future attacks. The JASTA, however, does not contribute to these goals, does not enhance the safety of Americans from terrorist attacks, and undermines core U.S. interests.”

Reactions to the Veto

Immediately after President Obama’s veto of JASTA, both Republicans and Democrats in Congress vowed to override the veto under Article I, Section 7 of the U.S. Constitution requiring a vote of at least two-thirds of each chamber of the Congress to do so. On the sidelines both major presidential candidates (Donald Trump and Hillary Clinton) said that they would have signed the bill if they were president.

These vows were made despite the prior day’s testimony before a Senate committee by Secretary of Defense Ash Carter opposing the bill on the ground that it could be a problem for the U.S. if another country was “to behave reciprocally towards the U.S.” And the Republican Chair of the House Armed Services Committee, Representative Mac Thornberry of Texas, amplified the military’s concerns and urged Republicans to study the bill’s consequences while announcing his intent to opposes the override.[2]

Not surprisingly immediately after this veto, Senator John Cornyn stated, “It’s disappointing the President chose to veto legislation unanimously passed by Congress and overwhelmingly supported by the American people. Even more disappointing is the President’s refusal to listen to the families of the victims taken from us on September 11th, who should have the chance to hold those behind the deadliest terrorist attack in American history accountable. I look forward to the opportunity for Congress to override the President’s veto, provide these families with the chance to seek the justice they deserve, and send a clear message that we will not tolerate those who finance terrorism in the United States.”[3]

On September 27 President Obama sent a letter to Senators Mitch McConnell (Rep., TN), the Majority Leader, and Harry Reid (Dem. NV), Minority Leader. The President said he was “fully committed to assisting the families of the victims of terrorist attacks of Sept. 11,″ but that the consequences of an override could be “devastating” by putting military and other U.S. officials overseas at risk. The bill’s enactment, he warned, “would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks.[4]

On September 28 Senators Cornyn and Shumer jointly wrote an op-ed article in USA Today urging Congress to override the veto because JASTA “would provide a legal avenue for the families of the victims of the 9/11 attacks to seek justice in a court of law for the terrorist attacks that took the lives of their loved ones. And it would deter foreign entities from sponsoring terrorism in the future.” The article also rejected as untrue the argument by JASTA’s opponents “that the bill will subject U.S. diplomats and other government officials to a raft of potential lawsuits in foreign courts.”[5]

On the morning of September 28, the New York Times published an editorial opposing the threatened congressional override of the veto because “the bill complicates the United States’ relationship with Saudi Arabia and could expose the American government, citizens and corporations to lawsuits abroad. Moreover, legal experts like Stephen Vladeck of the University of Texas School of Law and Jack Goldsmith of Harvard Law School doubt that the legislation would actually achieve its goal.”[6]

Moreover, the Times editorial asserted that the “European Union has warned that if the bill becomes law, other countries could adopt similar legislation defining their own exemptions to sovereign immunity. Because no country is more engaged in the world than the United States — with military bases, drone operations, intelligence missions and training programs — the Obama administration fears that Americans could be subject to legal actions abroad.”

Nevertheless, later that same day (September 28) Congress overwhelmingly voted to override the presidential veto. The only vote against the override in the Senate was by the Senate Minority Leader, Senator Harry Reid (Dem., NV). The vote in the House was 348 to override with only 59 opposed.[7] We will now look at the debate in both chambers.

U.S. Senate’s Overriding the Veto

In the Senate debate, Senators Richard Blumenthal (Dem., CT), John Cornyn (Rep., TX), Chuck Grassley (Rep., IA) and Chuck Schumer (Dem. NY) spoke in favor of overriding the veto and passing JASTA while Senators Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, Benjamin Cardin (Dem., DE), the Committee’s Ranking Member, and Diane Feinstein (Dem., CA) offered qualified endorsements of an override. [8]

Generally these Senators argued that U.S. victims of state-sponsored acts of terrorism needed the opportunity to assert their damage claims in U.S. courts against such sponsors and that JASTA would deter such sponsored terrorism. Senator Cornyn added that this “legislation has been pending since 2009, and we have worked through a number of Members’ concerns . . . in order to modify the legislation and build the consensus we now have achieved. . . . That means [JASTA] has been negotiated and hammered out over a long period of time.”[9]

Cornyn then offered this argument for rejection of the presidential veto message:

  • JASTA would not “create complications” with some of our close partners. It “only targets foreign governments that sponsor terrorist attacks on American soil. . . . The financing of terrorism in the [U.S.] is not behavior we should tolerate from any nation, allies included.”
  • Possible foreign laws like JASTA “applied reciprocally will open no . . . floodgates” of lawsuits against the U.S. or military members by foreign governments in foreign courts.
  • “JASTA is not a sweeping legislative overhaul that dramatically alters international law. It is an extension of law that has been on the [U.S.] books since 1976. . . . [For] 40 years our law has been replete with immunity exceptions that apply to conduct committed abroad. This bill just adds another exception.”

Senator Grassley, the Chair of the Senate Judiciary Committee, noted that this Committee unanimously supported overriding the veto of JASTA. He also said it was “highly unlikely” that passage of the bill would result in “the Saudis . . .pulling their money out of U.S. securities. . . . But even if they did, there would be plenty of buyers for those securities. But more importantly, . . . [such an argument would send the message;] if you want to influence U.S. legislation, make sure to buy up U.S. debt, and then threaten to sell that debt any time the U.S. Congress does something you don’t like. We absolutely cannot be intimidated or bend to that type of threat.”

Senator Corker commented that he had “tremendous concerns about the sovereign immunity procedures that could be set in place by other countries as a result of this vote” and that it could have adverse consequences for the U.S. “standing in the world.” He was troubled by “the concerns [of] . . . the head of our Joint Chiefs” and of the President. He also thought it would be better “to establish some type of tribunal, where experts could come in and really identify what actually happened on discretionary decisions that took place within the country of Saudi Arabia” with respect to the pending 9/11 claims.

As a result, Senator Corker prepared a bipartisan letter to the Senate sponsors of JASTA (Senators Cornyn and Schumer).[10] It expressed concern about “potential unintended consequences that may result from . . . [JASTA] for the national security and foreign policy of the United States. If other nations respond to this bill by weakening U.S. sovereign immunity protections, then the [U.S.] could face private lawsuits in foreign courts as a result of important military or intelligence activities. We would hope to work with you in a constructive manner to appropriately mitigate those unintended consequences.”

One of the signers of this letter and the Ranking Member of the Senate Foreign Relations Committee, Senator Benjamin Cardin (Dem., DE), recognized “that there are risk factors in terms of how other countries may respond to the enactment of JASTA. [11] As a nation with hundreds of thousands of troops that serve abroad, not to mention multiple foreign bases and facilities, the United States of America is a country that benefits from sovereign immunity principles that protect our country and our country’s interests, its Armed Forces, government officials, and litigation in foreign courts. Therefore, there is a concern of unintended consequences, including irresponsible applications to U.S. international activities by other countries. While I have faith and confidence in the American legal system, the same faith does not necessarily extend to the fairness of legal systems of other countries that may claim they are taking similar actions against America when they are not. So [as the Ranking Member of the Foreign Relations Committee, I will] follow closely how other countries respond and try to mitigate the risks of the [U.S.] abroad” and will “explore with my colleagues the possibility of whether we need or will need additional legislative action.”

Another signer of the letter, Senator Feinstein, expressed her “key concern relates to the exception to the immunity of foreign governments.”[12] “Proponents of this bill argue that the exception is narrow, that it applies only if a foreign nation, with ill intent, takes unlawful actions that cause an act of terrorism on our soil. But other nations that are strongly opposed to American actions abroad could respond by using the bill as an excuse to adopt laws that target our own government’s actions. A September 15 Washington Post editorial said it well: ‘It is not a far-fetched concern, given this country’s global use of intelligence agents, Special Operations forces and drones, all of which could be construed as state-sponsored `terrorism’ when convenient.’ Those of us on the Senate Intelligence Committee know that, if other countries respond to JASTA in this manner, it could jeopardize our government’s actions abroad. If that happens, it is likely that our government would be forced to defend against private lawsuits, which could pose a threat to our national security.” Therefore, she was interested in limiting JASTA to “the September 11 attacks” and to “those directly impacted by an attack–including individuals, their estates and property damage, rather than companies with only tangential connections.”

U.S. House of Representatives’ Overriding the Veto 

On the afternoon of September 28 the House voted to override the veto of JASTA by a vote of 348 (225 Republicans and 123 Democrats) to 77 (18 Republicans and 59 Democrats).[13]

The supporters of override were led by Representative Robert Goodlatte (Rep., VA), the Chair of the House Judiciary Committee, who asserted, “The changes JASTA makes to existing law are not dramatic, nor are they sweeping.. . .The President’s objections . . . have no basis under U.S. or international law.. . . Consistent with customary international law, JASTA, for terrorism cases, removes the current requirement that the entire tort occur within the United States and replaces it with a rule that only the physical injury or death must occur on U.S. soil.” Later in the debate he claimed (erroneously as explained in n.14) that his argument was supported by “Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties [which] would apply the territorial tort exception if the act or omission occurred in whole or in part in the territory of the state exercising jurisdiction.”[14]

Others who supported the override and who spoke during the debate were Representatives Peter King (Rep., NY), Sheila Jackson Lee (Dem., TX), Leonard Lance (Rep., NJ), David Donovan (Rep., NY), Carolyn Maloney (Dem., NY) and Jerrold Nadler (Dem. FL).

Leading the opposition to the override were Representative M. “Mac” Thornberry (Rep., TX), the Chair of the House Armed Services Committee, and Representative John Conyers (Dem., MI). Other opponents of override who spoke during the debate were Representatives Eddie Bernice Johnson (Dem., TX), David Jolly (Rep., FL), Betty McCollum (Dem., MN), Robert Scott (Dem., VA) and Earl Blumenauer (Dem., NY).

Thornberry expressed concern for the possible erosion of sovereign immunity, which is “one of the key protections that the military, diplomats, and intelligence community of the [U.S.] has around the world. Once that doctrine gets eroded, then there is less protection, and . . . the [U.S.], has more at stake in having our people protected than any other country because we have more people around the world than anyone else.” Thornberry also quoted from a letter to him from Joseph F. Dunford, Jr., General, U.S. Marine Corps. and Chairman of the Joint Chiefs of Staff: `Any legislation that risks reciprocal treatment by foreign governments would increase the vulnerability of U.S. Service members to foreign legal action while acting in an official capacity.” This letter and a letter urging defeat of the override from Secretary of Defense Ash Carter were inserted into the House record.

Conyers supported the President’s reasons for his veto. “First, the President stated that [the bill] could undermine the effectiveness of our Nation’s national security and counterterrorism efforts. For instance, other nations may become more reluctant to share sensitive intelligence in light of the greater risk that such information may be revealed in litigation.   Moreover, the President raised the concern that this legislation would effectively allow non-expert private litigants and courts, rather than national security and foreign policy experts, to determine key foreign and national security policy questions like which states are sponsors of terrorism.   Second, the President’s assertion that enactment of[the bill]may lead to retaliation by other countries against the [U.S.] given the breadth of our interests and the expansive reach of our global activities.   So while it seems likely at this juncture that [the bill] will be enacted over the President’s veto, I remain hopeful that we can continue to work toward the enactment of subsequent legislation to address the President’s concerns.”

Conyers also cited others who called for sustaining the President’s veto: Michael Mukasey, the former Attorney General under George W. Bush; Stephen Hadley, the former National Security Adviser for that President; Richard Clarke, the former White House counterterrorism adviser for Presidents Bill Clinton and George W. Bush; and Thomas Pickering, the former [U.S.] Ambassador to the United Nations.

Representative Scott said, “JASTA abrogates a core principle in international law–foreign sovereign immunity. There are already several exceptions to this immunity recognized by our Nation and others, but JASTA goes much further than any present exception or recognized practice of any national law…. One fundamental indication of fairness of legislation is not how it would work to our benefit, but what we would think if it were used against us. If the [U.S.] decides to allow our citizens to haul foreign nations into American courts, what would we think of other nations enacting legislation allowing their citizens to do the same thing to us? Obviously, we would not want to put our diplomats, military, and private companies at that risk.”

Scott also pointed out that “JASTA does not make clear how the evidence would be gathered to help build a credible case against a foreign nation. Would the plaintiffs be able to subpoena foreign officials? Or would the U.S. Department of State officials have to testify? Would . . . [the U.S.] be required to expose sensitive materials in order to help American citizens prove their case? Again, how would we feel about foreign judges and juries deciding whether or not the [U.S.] sponsored terrorism? There are also questions about how the judgment under JASTA would be enforced. The legislation does not address how a court would enforce the judgment. Could foreign assets be attached? How would this process work if other countries enacted similar legislation? Would U.S. assets all over the world be subject to attachment to satisfy the foreign jury verdicts?”

Jolly emphasized that “the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the CIA Director, and the Chairman of the House Armed Services Committee [Representative Thornberry] have all issued statements against this legislation.”

White House Reaction to the Overriding of the Veto

On the same day as this Senate vote and before the House voted on the same bill later that day, White House Press Secretary, Josh Earnest, said, “I would venture to say that this is the single-most embarrassing thing that the United States Senate has done possibly since 1983. You had at least one prominent Republican senator quoted today saying that . . . the members of the Senate Judiciary Committee were not quite sure what the bill actually did.  And to have members of the United States Senate only recently informed of the negative impact of this bill on our service members and our diplomats is, in itself, embarrassing.  For those senators then to move forward in overriding the President’s veto that would prevent those negative consequences is an abdication of their basic responsibilities as elected representatives of the American people.”[15]

Furthermore, said the Press Secretary, “these senators are going to have to answer their own conscience and their constituents as they account for their actions today.  You’ve got to give some credit to Harry Reid.  He showed some courage.  The same can’t be said for the other 96 members of the Senate who voted today.”

The same day President Obama on CNN said that a few lawmakers who backed the bill weren’t aware of its potential impact and that he wished Congress “had done what’s hard.” CIA Director John Brennan said he was concerned about how Saudi Arabia, a key U.S. ally in the Middle East, would interpret the bill. He said the Saudis provide significant amounts of information to the U.S. to help foil extremist plots. “It would be an absolute shame if this legislation, in any way, influenced the Saudi willingness to continue to be among our best counterterrorism partners,” Brennan said.[16]

On September 29, after the House had voted and JASTA became law, Press Secretary Earnest added, “I think what we’ve seen in the United States Congress is a pretty classic case of rapid-onset buyer’s remorse.  Within minutes of casting their vote to put that bill into law, you had members of the United States Senate — some 28 of them — write a letter expressing deep concern about the potential impact of the bill they just passed.  The suggestion on the part of some members of the Senate was that they didn’t know what they were voting for, that they didn’t understand the negative consequences of the bill. That’s a hard suggestion to take seriously when you had letters from President Bush’s attorney general and national security advisor warning about the consequences of the bill.  You had attorneys from our closest allies in Europe expressing their concerns about the impact of the bill.  You had a letter from some of America’s business leaders, including Chief Executive of GE, Jeffrey Immelt, warning about the potential economic consequences of the bill.  You had letters from the Director of the CIA, the Chairman of the Joint Chiefs of Staff, the Secretary of Defense and the Commander-in-Chief all warning about the potential impact of the bill.”[17]

Conclusion

As indicated above, certain Senators indicated their intent to pursue amendments to JASTA to remedy what they see as problems with the statute. This will be the subject of future posts.

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[1] White House, Veto Message from the President—S.2040 (Sept. 23, 2016) Afterwards Josh Earnest, the White House Press Secretary, discussed whether there was congressional opposition to overriding the veto and criticism of the bill from Saudi Arabia and “a lot of other countries, including the European Union. White House, Press Briefing by Press Secretary Josh Earnest, 9/26/16; White House, Press Briefing by Press Secretary Josh Earnest, 9/27/16.

[2] Assoc. Press, Lawmakers Vow to Override Obama’s Veto of Sept. 11 bill, N.Y. Times (Sept. 24, 2016).

[3] Cornyn, Cornyn Statement on President’s Veto of JASTA (Sept. 23, 2016).

[4] Demirjian & Ellperin, Congress overrides Obama’s veto of 9/11 bill, Wash, Post (Sept, 28, 2016).

[5] Cornyn, Cornyn Op-Ed: give 9/11 Families a Legal Avenue (Sept. 28, 2016).

[6] Editorial, The Risks of Sueing the Saudis for 9/11, N.Y. Times (Sept. 28, 2016)

[7] Steinhauer, Mazzetti & Davis, Congress Votes to Override Obama Veto on 9/11 Victims Bill, N.Y. Times (Sept. 28, 2016); Eilpirin & Demirjian, Congress thwarts Obama on bill allowing 9/11 lawsuits against Saudi Arabia, Wash. Post (Sept. 28, 2016).

[8] Cong. Rec. S6166-73 (Sept. 28, 2016).

[9] The prior post about the initial passage of JASTA started with the 2015 introduction of the bill and did not attempt to cover earlier versions of the bill or the process referenced by Senator Cornyn. Comments about this earlier process would be much appreciated.

[10] This bipartisan letter was signed by 15 Democrat Senators (Bennet, Cardin, Carper, Coons, Feinstein, Heitkamp, Hirono, McCaskill, Merkley, Nelson, Reed, Schatz, Shaheen, Udall and Warner), 12 Republican Senators (Alexander, Coats, Corker, Cotton, Flake, Graham, McCain, Risch, Roberts, Rounds, Sullivan and Thune) and Independent Senator King.

[11] Cardin, Cardin Statement on JASTA Veto Vote (Sept. 28, 2016).

[12] Feinstein, Feinstein Statement on Justice Against Sponsors of Terrorism Act (Sept. 28, 2016).

[13] Cong. Record H6023-32 (Sept. 28, 2016).

[14] The United Nations Convention on Jurisdictional Immunities of States and Property is certainly relevant to the issue of international law on the subject. Representative Thornberry, however, failed to quote the entirety of Article 12 of this treaty and thereby reached an erroneous conclusion that it supports JASTA. That Article states, “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” The portion in bold was not quoted by Thornberry.  Moreover, this treaty is not yet in force because its Article 30 requires 30 states to become parties thereto, and to date only 21 states have done so, and the U.S. has neither signed nor ratified this treaty.

[15] White House, Press Gaggle by Press Secretary Josh Earnest en route Fort Lee, Virginia 9/28/16.

[16] Assoc. Press, Congress Rebukes Obama, Overrides Veto of 9/11 Legislation, N.Y. Times (Sept. 28, 2016); Reuters, Congress Rejects Obama Veto, Saudi Sept. 11 Bill Becomes Law, N.Y. Times (Sept, 28, 2016).

[17] White House, Press Briefing by Press Secretary Josh Earnest and Secretary of Education King (Sept. 29, 2016).

 

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.

 

 

 

Additional Reactions to U.S. Senate’s Adoption of Modest Reforms to Its Filibuster Rule

As already reported in a prior post, the U.S. Senate on January 24th adopted modest reforms to its filibuster rule, and the initial reactions were mixed. Here are some additional reactions.

The Majority and Minority Leaders

The brokers of the actual reforms–Democratic Senator Harry Reid, the Majority Leader, and Republican Senator Mitch McConnell, the Minority Leader–issued statements afterwards.

Senator Harry Reid
Senator Harry Reid

Senator Reid said the reforms are “steps towards ending gridlock in the Senate, and making this body a more efficient place while still respecting the rights of the minority.  Americans of all political stripes can agree that Washington is not working the way it should. We were elected to get things done for the middle class – not waste time with endless stalling tactics that cause even bills with broad bipartisan support to languish for weeks. These reforms will allow us to deal with legislation in a more timely fashion, and weaken the ability of those who seek to obstruct for obstruction’s sake”
Reid added, “If these reforms do not do enough to end the gridlock here in Washington, we will consider doing more in the future.”

Senator Mitch McConnell
Senator Mitch McConnell

McConnell, on the other hand, emphasized that the bipartisan compromise package ” avoided the nuclear option, and . . . [retained the rule] that any changes to the Standing Rules of the Senate still require 67 [two-thirds] votes.” He also expressed home “the Senate can return to the way it used to operate and that all of us will be able to participate more fully in the legislative process.”

Leaders for Stronger Reforms

Senator Jeff Merkley
Senator Jeff Merkley

Senator Jeff Merkley, one of the leaders for stronger reforms, recognized that the Senate as a whole had declared “the paralysis of the Senate is unacceptable.”   The adopted reforms, he said, “are modest, and don’t address the core problem of the secret, silent filibuster, but they do include some important elements, providing flexibility on the motion to proceed and speeding up the confirmation process on nominations.”

“If these modest steps do not end the paralysis the Senate currently suffers,” Merkley added,” many Senators are determined to revisit this debate and explore stronger remedies,” and he would keep working to that end. “We have a responsibility to address the big issues facing our country. I’ll keep working with my colleagues to achieve that goal.”

In an interview, Merkley reiterated his commitment to pressing for additional reform if nothing much changes in this session of the Congress.

Senator Tom Udall
Senator Tom Udall

The other leader for stronger reforms was Senator Tom Udall of New Mexico. He said that although the adopted reforms were “not as strong what many of us have been advocating,” they did alter “the way we deal with nominations, conference committees and motions to proceed — all things I’ve been working toward.”  Udall, therefore, was “supporting . . . [the] efforts to get a bipartisan agreement today,” but would “continue to fight for the stronger filibuster reforms my colleagues and I believe will make the Senate a more accountable institution.”

Udall also emphasized that the external infrastructure for Senate reform would continue and remain vigilant and ready to  push for more action later if necessary.

Conclusion

I hope that these limited changes will make the Senate more functional.

But I am skeptical.

For example, in this new session of Congress Republicans are delaying a Judiciary Committee hearing on the President’s nomination of a very able lawyer to be a circuit court judge. The purported justification is their demand for information about the Government’s settlement of a case in which he had a minor role.

Another example is the limited changes’ failure to alter the filibuster rule for high-level presidential appointments. This week an appellate court held that President Obama violated the Constitution by making several recess  appointments to the National Labor Board, which otherwise were subject to Senate confirmation, when the Senate was not really open for business, but rather in Potemkin Village illusions of sessions. According to the New York Times, this Republican senatorial practice and the court’s decision demonstrate how the Democrats’ “timidity” on reforming the filibuster rule “is being used against them.”