Top Ten Ways Grassley is Choosing Politics over Principle in Judicial Confirmations
His conduct as chairman in the coming weeks and months will both cement his legacy and impact our democracy for generations to come.
By Mike Zubrensky
Last month, three of President Trump’s judicial nominees were withdrawn — and for good reason. But many are wondering how these clearly unqualified individuals made it so far in the confirmation process in the Senate. The senator who holds the most power to be an effective guardian of a fair and independent judiciary is the chair of the Senate Judiciary Committee, Senator Chuck Grassley. In his capacity as chair, he decides who receives a hearing and who will advance toward confirmation. Grassley can be an independent senator and protect the role the Senate has always had assigned to it under the Constitution, or he can enable a reckless president who is seeking to pack our federal courts with judges who have earned their nominations by demonstrating an extreme political agenda.
Here are the top 10 ways Chairman Grassley has erred on the side of politics, not principle, in overseeing the judicial confirmation process:
1. Disregarding Home-State Senator Objections
The Constitution assigns to the Senate a separate and independent role from the president for lifetime appointments to the federal judiciary. The first prong of the Senate’s role is to provide advice and the second is to determine whether to consent to a nominee’s confirmation. The “blue slip” is a piece of paper that reflects the important role that home-state senators have played for the last century in providing advice to presidents about lifetime appointments in their state. If the chair of the Senate Judiciary Committee allows judicial nominees to advance without receiving the blue slips from the home-state senators, no president will be compelled to listen to their advice. A recent Congressional Research Service report identified only three judicial nominees who were confirmed over blue slip objections. The blue slip practice is one of the critical checks and balances that helps maintain equilibrium among the branches of government. Over the years, when the Senate majority placed partisan loyalty to the president over the Senate’s institutional interests in independently carrying out its constitutional responsibilities, the blue slip served as a vital corrective. This institutional check has arguably never been more important than today, with a president who undermines the legitimacy of judges who disagree with his actions and who prioritizes loyalty to him over fealty to the law.
Grassley’s decision to give a hearing in November to controversial Eighth Circuit nominee David Stras — over the objection of one of his home-state senators — is a rejection of Senate tradition and demonstrates Grassley’s hypocrisy. Here’s what Grassley promised just two years ago, during the presidency of Barack Obama:
“For nearly a century, the chairman of the Senate Judiciary Committee has brought nominees up for committee consideration only after both home-state senators have signed and returned what’s known as a ‘blue slip.’ This tradition is designed to encourage outstanding nominees and consensus between the White House and home-state senators. Over the years, Judiciary Committee chairs of both parties have upheld a blue-slip process, including Sen. Patrick Leahy of Vermont, my immediate predecessor in chairing the committee, who steadfastly honored the tradition even as some in his own party called for its demise. I appreciate the value of the blue-slip process and also intend to honor it.”
Grassley’s strict observance of the blue slip tradition during the Obama presidency led to the denial of hearings and votes for 18 Obama judicial nominees. But now that President Trump is the one making judicial nominations, Grassley has abandoned his promise and a century of Senate tradition in order to rush through Trump’s far-right judicial nominees. Grassley’s about-face should be condemned by senators of both parties because it will strip them of their constitutional role of providing advice and consent for judicial appointments in their states from this and all future administrations. As Senator Hatch astutely observed in 2014: “Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power. Anyone serious about the Senate’s ‘advice and consent’ role knows how disastrous such a move would be.”
2. Stacking Hearings to Limit Committee Consideration
Chairman Grassley has overturned another bipartisan Senate tradition by scheduling hearings with two circuit court nominees. The tradition of having just one circuit court nominee per hearing exists because these federal appellate courts are the second highest courts in the land, and they make critical decisions involving multiple states and tens of millions of people. Each circuit court nominee is deserving of the Senate Judiciary Committee’s time, attention, and thorough examination. During the eight years of the Obama presidency, only three hearings featuring two circuit court nominees took place — out of 94 judicial nominations hearings — and Republican senators agreed to each of them. In just the first year of the Trump presidency, Grassley jammed two circuit court nominees into four out of the 13 judicial nominations hearings he held — nearly a third of the time — despite Democratic objections. He conceded that stacked hearings were “unusual” at a September hearing, but then he went ahead and conducted two additional stacked hearings in November. Such hearings have deprived the committee of adequate time and resources to properly assess each lifetime nominee.
3. Expediting Hearings
Chairman Grassley conducted hearings in November for five extremely conservative circuit court nominees: Leonard Grasz, Don Willett, James Ho, David Stras, and Stuart Kyle Duncan. Ranking Member Dianne Feinstein noted that this is the first time in the nearly 25 years she has served on the committee that there were hearings held for five circuit court nominees in a single month. It was also a month in which the Senate was in recess during the Thanksgiving week. To hold hearings for five circuit court nominees in a single month — especially one that included a major holiday recess — is a troubling departure from Senate tradition.
For some perspective, during the entire last two years of the Obama presidency, Grassley held hearings for only five circuit court nominees — the same number of nominees he pushed through the committee in the month of November alone. Moreover, Grassley made Obama’s judicial nominees wait far longer than Trump nominees before granting them hearings. The five Obama circuit court nominees who received hearings under Grassley had to wait 4–7 months for a hearing. By comparison, most of Trump’s circuit court nominees have received a hearing within 4–7 weeks after being nominated.
4. Discarding the Evaluation of Minimal Professional Standards
President Trump’s decision to make judicial nominations before the nonpartisan and independent American Bar Association (ABA) has a chance to review them was unusual and troubling. He is just the second president (along with George W. Bush) to remove the ABA from this critical role since the Eisenhower administration initiated ABA evaluations in the 1950s. Despite requests from Ranking Member Feinstein and advocacy organizations to delay holding hearings on judicial nominees until ABA ratings have been submitted, Grassley has plowed ahead and held hearings on four nominees before their ABA ratings were available for members of the Senate Judiciary Committee to consider. Two of those nominees — Brett Talley and Holly Teeter — ended up receiving ABA ratings of Not Qualified after their hearings, which demonstrates the importance of waiting to schedule hearings until ABA ratings are completed.
5. Discounting the Importance of the ABA’s Testimony
In the past, when the ABA rated a judicial nominee Not Qualified, and that nominee was given a hearing, the Senate Judiciary Committee chair would invite the ABA evaluators to testify and explain the basis for their rating. Grassley, however, has refused to let the ABA evaluators testify, thus breaking with precedent and tradition. For example, when the ABA testified at the committee’s November 15 hearing about its Not Qualified rating for Leonard Grasz, Grassley only allowed the chair of the ABA evaluation committee to testify, not the actual ABA evaluators, who have the most knowledge of the nominee. As the ABA chair noted at the hearing:
“It is our tradition and practice in appearing before the Judiciary Committee that evaluators accompany the Chair to explain any Not Qualified rating…. On November 8, 2017, we were advised that the Judiciary Committee was inviting only the Chair of the Standing Committee to appear. We regret this change, as it will likely make it more difficult to respond to some questions by the Senate Judiciary Committee.”
In addition, Grassley has criticized the ABA when it has rated Trump’s judicial nominees as unqualified, but he has touted the ABA ratings when they are positive. He can’t have it both ways.
6. Tolerating Incomplete Answers on the Senate Questionnaire
Judicial nominees are required to submit paperwork to the Senate Judiciary Committee following their nomination. The primary document is a 26-question questionnaire that asks for information about a nominee’s legal experience and most significant cases. It also requires nominees to provide past speeches and writings “including material published only on the Internet.” Not all Trump judicial nominees have been providing responsive documents, most notably Brett Talley, who failed to supply more than 16,000 online posts, including one in which he defended the KKK. Nor have nominees (such as Talley and Don Willett) been supplying their Twitter messages, despite such messages clearly constituting “material published only on the Internet.” Grassley is allowing Trump nominees to get away with submitting incomplete questionnaires in order to rush them through the committee process and shield them from scrutiny.
7. Relaxing Standards for Prior Drug Use
Under President Obama, Grassley would not permit judicial nominees to proceed if they had used marijuana after becoming an attorney, even if such minor drug use had occurred only once in the distant past. However, at a public November 16 committee meeting, Grassley announced a change of policy. He said he would adopt a more permissive drug use policy for Trump judicial nominees than he did for Obama judicial nominees. Grassley said that his views have “evolved” on the issue and that he is now willing to go forward with judicial nominees who have used marijuana after becoming an attorney. Grassley’s new policy is a welcome development, but it also serves as yet another example of his double standard for Democrats.
8. Obstructing Obama Judicial Nominees to Drive Up Vacancies
Chairman Grassley obstructed President Obama’s judicial nominees in 2015 and 2016, with the assistance of Majority Leader Mitch McConnell, who refused to confirm any Obama nominee after July 6, 2016 — one of the earliest confirmation cutoff dates in U.S. history. As a result, President Trump inherited a near record number of judicial vacancies to fill. There were only 54 judicial vacancies — out of 860 authorized federal judgeships — when President Obama took office. When Trump took office, there were 115 judicial vacancies — over twice the number that Obama received — constituting more than 13 percent of the federal judiciary. The large number of judicial vacancies has caused tremendous backlogs and delays in the administration of justice in America over the past two years. Grassley’s slow-walking of Obama judicial nominees during the last two years of the Obama presidency contributed to this crisis in our courts. Rather than addressing the crisis where it is most acute — at the district court level — McConnell has been prioritizing and jamming through circuit court confirmations.
9. Pushing the Nuclear Option for Supreme Court Nominees
Chairman Grassley was a leader in calling for Senate Republicans to pursue the “nuclear option” and change Senate rules last April so that Judge Neil Gorsuch could be confirmed to the Supreme Court. The Republican rule change created a mere 51-vote threshold to defeat cloture on Supreme Court nominations for the first time in U.S. history. As chair of the Senate Judiciary Committee, Grassley should have acted more responsibly by, for example, calling on President Trump to nominate a more mainstream nominee than Gorsuch after he was rejected by every Democratic member of the Senate Judiciary Committee and filibustered by Senate Democrats under the historic 60-vote cloture standard. Instead, Grassley voted to change Senate rules to allow confirmation of the extreme Justice Gorsuch, who has already established himself as the most conservative member of the Supreme Court along with Clarence Thomas. Grassley voted to rubber-stamp Trump’s extreme Supreme Court nominee by helping facilitate one of the most radical Senate rule changes in American history.
10. Refusing to Schedule a Supreme Court Hearing
After Justice Scalia passed away in February 2016, Grassley refused to even schedule a hearing for President Obama’s eminently qualified and centrist Supreme Court nominee, Judge Merrick Garland, who was nominated in March 2016. Every Supreme Court nominee since 1875 (who did not withdraw) had received either a Senate hearing or a vote. Grassley’s refusal to give Garland a public hearing was one of the worst abuses of the confirmation process in U.S. history.
In sum, Grassley’s conduct during the past three years during which he has chaired the Senate Judiciary Committee has greatly politicized the confirmation process and the federal judiciary. Chairman Grassley has a choice to make if he doesn’t want his legacy to be reducing the Senate’s constitutional role and converting the committee into a rubber stamp for judicial nominees. How he conducts the Senate Judiciary Committee in the coming weeks and months will not only cement his legacy, but will impact our democracy for generations to come.
Mike Zubrensky is chief counsel and legal director of The Leadership Conference on Civil and Human Rights. During the Obama administration, he was Deputy Assistant Attorney General and worked on judicial nominations for the Department of Justice.
