Fact Check
Chuck Grassley can’t “debunk” the fact that unprecedented supreme court obstruction is wrong
With even large majorities of Republicans calling on the Senate to do its job and Iowans telling him day after day to hold a hearing on Chief Judge Merrick Garland’s nomination to the Supreme Court, it’s clear that Sen. Chuck Grassley is feeling the pressure over his unprecedented obstruction.
The constitution is quite clear — the President has a constitutional duty to nominate Justices to the Supreme Court and the Senate has a job to do in considering that nominee. In the past century, every pending nominee to a vacant seat on the Supreme Court that has not withdrawn has received a timely vote on his or her nomination.
This latest attempt to justify adhering to Senator McConnell’s Republican party line instead of doing his constitutional duty claims to “debunk” myths but instead perpetuates them — breaking with Senator Grassley’s previous positions in the process. Here is a point-by-point fact check:
Grassley Myth 1:
There are three steps for a new Supreme Court justice to be seated:
1. “[The president] shall nominate [a prospective justice]…”
2. “…by and with the advice and consent of the Senate…”
3. “…[The president] shall appoint…Judges of the supreme Court…”
A majority of United States Senators do not support moving forward with the confirmation process. The president does not have a right to appoint justices, merely to nominate them, just as he has done. The ability to appoint can only follow the advice and consent of the Senate, which has not been provided. As scholars have roundly pointed out, the Senate decides how it consents or withholds its consent.
The Facts:
As this points out, Senate Republicans have “not provided” advice and consent. Clearly, Senate Republicans have not done their jobs. As Senator Grassley has said throughout his career (until now), the Senate has a constitutional responsibility to review the President’s judicial nominations.
Senate Judiciary Committee Chairman Chuck Grassley (R-IA): “The Constitution gives the President the responsibility for nominating candidates for the Federal judiciary. The Senate role, spelled out in that same clause of article 2, dealing with the powers of the Executive, not the legislative branch, is to ‘advise and consent’ to the nomination. It is not the Senate’s responsibility to second-guess, or substitute its own judgment for that of the President.” [Floor Remarks, 7/9/91]
Senate Judiciary Committee Chairman Chuck Grassley (R-IA): “It is the Senate’s constitutional responsibility to thoroughly review the qualifications of the President’s judicial nominations.” [Floor Remarks, 8/6/09]
Grassley Myth 2:
Both President Obama and the United States Senate are acting within the confines of their duties, according to Article II, Section II of the Constitution. One may agree or disagree with the president’s nomination for any number of reasons or one may agree or disagree with the Senate’s decision not to proceed on the nomination; however, neither the executive nor the legislative branch has neglected to do their job or fulfill any legal obligation. In fact, they both have done exactly what is constitutionally required.
Moreover, the Senate is hard at work, proving itself to be the most productive Congress in years.
As Chairman of the Judiciary Committee, Senator Grassley has ledsignificant bipartisan efforts on important legislation. There have been 27 bills approved by the Judiciary Committee under Grassley’s leadership. All of the bills have been approved with bipartisan support.
The Facts:
As Senator Grassley has said, the Senate must provide advice and consent no matter who is in the White House.
Senate Judiciary Committee Chairman Chuck Grassley (R-IA): “The Senate needs to do its job and conduct a comprehensive and careful review of your record and qualifications. You are nominated to a lifetime position on the highest Court. The Senate has a tremendous responsibility to confirm an individual who has superior intellectual abilities, solid legal expertise, and an even judicial demeanor and temperament.” [Senate Judiciary Committee, 7/13/09]
Senate Judiciary Committee Chairman Chuck Grassley (R-IA): “The other thing is that we conservatives lost the election and, for the next 4 years, the right to nominate people to the Supreme Court. It does not mean we in this body dig a hole for ourselves and pull it in after us and forget our advise and consent responsibilities. We have that. But it seems to me we as Senators have to look at advise and consent, when we have a Democrat nominee for the Supreme Court, just as we expect Democrats in this body to do when we have a Republican selecting somebody to the Supreme Court.” [Floor Remarks, 8/2/93]
Senate Leaders of both parties knew the Senate has a responsibility to act. But today, Republicans are refusing to do exactly that.
Here’s what Senator Grassley believed when a Republican was in the White House.
Senate Judiciary Committee Chairman Chuck Grassley (R-IA): “And I’m hopeful that my colleagues will give Judge Alito a civil, a fair and a dignified process, as well as an up-or-down vote on the floor because, as always, the Constitution sets the standard; the president nominates; the Senate deliberates; and, then, we are obligated to give our advice and consent in an up-or-down vote.” [Senate Judiciary Committee, 1/9/06]
This Republican Senate “is on pace to work the fewest days in sixty years.” This Republican Senate “has done remarkably little” on judges and executive nominees. This Republican Senate refuses to do its job and give Judge Garland a hearing and a vote. Republicans are more committed to gridlock than doing their job.
As Chairman of the Judiciary Committee, Senator Grassley has led significant bipartisan efforts on important legislation. There have been 27 bills approved by the Judiciary Committee under Grassley’s leadership. All of the bills have been approved with bipartisan support.
The Chairman of the Judiciary Committee cannot defend his record on the federal judiciary. As the Des Moines Register wrote, “action on federal court nominations has slowed markedly since U.S. Sen. Chuck Grassley took control of the Senate Judiciary Committee.”
Grassley Myth 3:
The Supreme Court is equipped to function with eight justices for a relatively brief time, and has historically had differing numbers of judges (anywhere from six to ten), a number that is set by Congress. Cases can be re-argued, rescheduled and resolved in the future, so having an even number of judges temporarily will not prove problematic, as both Justice Breyer and Justice Alito have stated. Senator Grassley recently rebutted hyperbolic claims to the contrary.
The Facts:
Former Supreme Court Justices disagree that this is a myth.
Former Supreme Court Justice John Paul Stevens: “Go ahead and hold a hearing” on Judge Merrick Garland, Stevens said Thursday… “I’m not aware of any confirmation process that’s been delayed to the extent that this one is,” Stevens said. He added that it’s “really unfortunate” that the court will likely be down one justice months into its next term, which begins in October. [Huffington Post, 5/5/16]
Former Supreme Court Justice Sandra Day O’Connor: O’Connor, the first woman to serve on the court and a nominee of President Ronald Reagan, rejected the notion that the next president should be able to pick the next justice after the election. “I don’t agree. I think we need somebody there now to do the job, and let’s get on with it,” she said. [Politico, 2/18/16]
USA Today: “The court’s struggles to carry on with eight members since Scalia died Feb. 13 are well documented. The justices have deadlocked, 4–4, on three occasions so far. They have granted fewer cases than normal to hear next term. Oral arguments are devoid of Scalia’s tough questions and incisive wit.”
Because of the vacancy on the Supreme Court, major issues are left unresolved, denying Americans the justice they deserve. As a recent column in the Economist said, “a curbed Supreme Court is not a court that can possibly live up to its name.”
Grassley Myth 4:
In 2012, the American people re-elected Barack Obama as President of the United States. In 2014, the American people elected their respective members of Congress, handing over control of the United States Senate to Republicans. The appointment of judicial nominations requires the approval of both the executive branch and the legislative branch. With the two co-equal branches of government politically divided and the country experiencing a hotly contested presidential election, a confirmation process would only serve to heighten partisan differences regarding the vacancy. Instead of unnecessarily spending time litigating an issue on which the two branches of governments disagree, Congress should focus on issues where common ground can be found.
This vacancy could affect the direction of the Supreme Court for generations to come. The question for Americans is if the Supreme Court should be a super legislature, deciding cases on the whims and feelings of a justice on any particular day, or if the Supreme Court should decide cases based on the Constitution and the rule of law. Indeed, there are many outside groups and partisan organizations that know this and are attempting to politicize the vacancy to serve their narrow political purposes.
This election year should be used as an opportunity to let the people have a voice on whose vision to fill this vacancy they support, and leave it to the next president to nominate a replacement.
The Facts:
Americans know Republicans are playing politics with the nomination to the Supreme Court.
CBS/NYT Poll: 73% of Americans Say Republicans Are Delaying Hearings for Political Reasons. “Senate Republican leaders have said they will not hold hearings on any Supreme Court justice nominated by President Obama because they want to wait until the next president is in office. Seventy-three percent of Americans think this is being done for political reasons, while just a quarter say it is because that’s what Republican Senate leaders think is best for the country. Americans across the political spectrum, including a slim majority of Republicans (52 percent) and a large majority of Democrats (90 percent), think the hearings are being held up for political reasons.” [CBS News, 3/22/16]
Monmouth Poll: “Just 16% of the public agrees that the Senate Republicans are refusing to consider Garland primarily to give the public a say in the nomination.” “Just 16% of the public agrees that the Senate Republicans are refusing to consider Garland primarily to give the public a say in the nomination. Fully 77% think the GOP leadership is just playing politics. Those who see this stance as mainly a political ploy include large majorities of Democrats (86%), independents (80%), and Republicans (62%).” [Monmouth University, 3/21/16]
This Republican obstruction is unprecedented. The non-partisan SCOTUSBlog noted “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.”
Grassley Myth 5:
Nominating and confirming a Supreme Court justice in a presidential election year, particularly under divided government, would be unprecedented in modern American history.
It has been 128 years since a Supreme Court justice was nominated and confirmed in a presidential election year while the president’s opposing party controlled the Senate (1888, President Grover Cleveland, Justice Melville Fuller).
Opposition to election year confirmation battles is not unique to Republicans either. In a recent op-ed for the Des Moines Register, Senator Grassley noted:
For example, then-Senate Judiciary Committee Chairman Joe Biden, lectured in 1992 that “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” In 2005, than-Senate Majority Leader Harry Reid, a Democrat, stated, “Nowhere in that document [the Constitution] does it say the Senate has a duty to give presidential nominees a vote.” In 2007, a year and a half before the end of George W. Bush’s tenure as president, Sen. Chuck Schumer, heir apparent as Senate Democratic Leader, proclaimed the Senate “should not confirm a Supreme Court nominee except in extraordinary circumstances.
In 2006, President Obama, then a senator from Illinois, Vice President Joe Biden, then a senator from Delaware, Minority Leader Harry Reid, and Judiciary Committee Ranking Member Patrick Leahy led the first filibuster of a Supreme Court nominee, saying that Samuel Alito should not receive an up or down vote.
According to a recent op-ed by former Attorney General Michael Mukasey in the Wall Street Journal, “33 nominees to the high court have failed to win confirmation. Of those, five were simply ignored.”
There is very little modern precedent for this exact situation as presidential election year Supreme Court vacancies are so rare. To safeguard the highest court in the land from being seen as a political body, filling this vacancy should be left to the next president, no matter their political party, after the American public has weighed in on this issue.
The Facts:
This is a wildly misleading statement. As the non-partisan Congressional Research Service noted, “Of the six nominations made to vacancies that have existed during presidential election years since 1900, each was confirmed by the Senate.” Other independent experts agree.
SCOTUSBlog: “In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.” [SCOTUSBlog, 2/13/16]
Brookings Institute Congressional Scholar Sarah Binder: “Counter to claims, there is no election year taboo or rule prohibiting presidents from nominating or senators from considering Supreme Court nominees during presidential election years.” [Washington Post, 2/14/16]
Senator Grassley refuses to heed his own words:
Des Moines Register (Obradovich): Grassley was right on court hearings — in ’92. “Sen. Chuck Grassley’s new best friend, Joe Biden, argued in 1992 that Supreme Court nominations should not be made in the year of a presidential election. Grassley used plenty of Biden’s words again Wednesday in a Senate floor speech defending the Republicans’ refusal to consider any Supreme Court nominees before November’s election. Grassley quoted Biden’s prediction that a nominee dropped into the “cauldron” of a presidential election would face hearings in which neither side would honor any bounds of propriety. I don’t recall many other times when Grassley took Biden’s words as the font of all truth and wisdom, but there’s a first time for everything. But what about the words someone else spoke in 1992? “We have put too much emphasis on litmus test-type questions on current political issues as if a Supreme Court justice were running a campaign to be elected. … We ought to concentrate entirely upon the (nominees’) integrity, their qualifications and background.” Good advice from Grassley himself, as reported by The Des Moines Register in December 1992, when the senator gave a speech to the Iowa Bar Association after the Clarence Thomas confirmation hearings. … Maybe instead of mimicking Biden, Grassley could start listening to his old self. Maybe instead of hoping the next president offers more acceptable nominees, we all could start insisting on a fair hearing no matter who nominates a justice.”
Justice Alito received a hearing, a vote and now sits on the Supreme Court. Republicans refuse to do their job on Justice Garland.
Grassley Myth 6:
Justice Kennedy was nominated the year prior to the election year. Kennedy’s nomination and confirmation only occurred after the unprecedented treatment of Judge Robert Bork and the withdrawal of Judge Douglas Ginsburg from consideration.
The Facts:
As the non-partisan Congressional Research Service noted, “Of the six nominations made to vacancies that have existed during presidential election years since 1900, each was confirmed by the Senate.” In 1916 and 1932, the Senate confirmed nominations to the Supreme Court that arose during Presidential election years. As noted above, SCOTUSBlog found “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.”
Grassley Myth 7:
The decision to not proceed with Merrick Garland’s nomination is one that was made irrespective of his liberal political positions or even his judicial philosophy. This is not about an individual or a disagreement over policy or politics, but a disagreement over the process by which a highly important role with the power to greatly affect the future of the nation should be filled. This is an historic opportunity to give the American people a voice regarding the kind of justice they would like to sit on the Supreme Court.
The Facts:
Chuck Grassley disagrees with Chuck Grassley.
Senate Judiciary Committee Chairman Chuck Grassley (R-IA): “The Washington Post had it right when it editorialized on January 15: A Supreme Court nomination isn’t a forum to refight a presidential election .I would go a step further than that editorial. A Supreme Court nomination is not a forum to fight any election. It is the time to perform one of our most important constitutional duties and decide whether a nominee is qualified to serve on the Nation’s highest court.” [Floor Remarks, 1/26/06]
Senate Judiciary Committee Chairman Chuck Grassley (R-IA): “Today this committee begins one of its most solemn duties, and although the full Senate must ultimately act on this nomination, this committee has the obligation to build a record and to conduct the most in-depth inquiry that we can.” [Senate Judiciary Committee Hearing on Elevation of Justice Rehnquist, 7/86]
