Grassley is not protecting the will of the American people. He’s subverting it.
Yesterday, Republicans in the U.S. Senate, led by Iowa’s Chuck Grassley, formally adopted obstructionism as the guiding principle of their agenda. GOP members of the Judiciary Committee, chaired by Grassley, announced their refusal to even consider President Barack Obama’s nomination to fill the current vacancy on the Supreme Court. That’s right, not a hearing, not a vote, no consideration whatsoever regardless of the nominee or his or her qualifications to serve on the nation’s highest court.
For all the instances where Republicans have criticized the courts for broadly interpreting constitutional powers, I was eagerly awaiting the legal rationale for the announcement. Needless to say, I was disappointed but not surprised when it turned about to be a mix of “we don’t wanna” and “Democrats once said they would do the same thing.” It was a proud moment for statesmanship to be sure.
Here is what the GOP members of the committee had to say:
“Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017” (emphasis added).
Let’s be clear, Republicans are not protecting the will of the American people. They are very clearly subverting it. In the 2012 General Election, Barack Obama was overwhelmingly reelected to a full four-year term, winning 66 million popular votes and 332 electoral votes, far outpacing his Republican opponent. Not to rely on too many clichés but elections have consequences and part of any presidential election is the power to appoint nominees to the Supreme Court. The notion that Republicans are protecting the will of the people by refusing to even consider the nominations of the person they elected president is a shocking act of partisanship and a blatant disregard for our constitutional system of government.
I can already hear those on the other side ceding this point but citing the U.S. Senate’s role in providing advice and consent to judicial nominees. Let’s all look at that authority as a good strict constructionist, which Grassley claims to be. Advice and consent is separate and distinct from consideration. The Senate’s role in providing advice and consent should not provide the foundation for the chamber to preemptively decide to withhold consideration of any nominee. If that were the case, we would be setting a very dangerous precedent in keeping judicial positions across the country filled and maintaining the public’s access to the courts. Several of President Obama’s nominations to lower courts have been confirmed unanimously. It seems to me that the Senate Judiciary Committee and Senator Grassley would at the very least be obligated to hold a hearing if the president selected one of those individuals to serve on the high court.
Justice Scalia was known as an advocate for the constitutional right to confront your accuser. Let’s maybe extend that approach into this debate. If Republicans have concerns about a nominee’s legal philosophy, use the committee hearing as an opportunity to have that discussion in front of the American people. The president’s nominee should be able to demonstrate his or her qualifications to serve on the Supreme Court directly to the senators who claim they care about the judiciary so much. Of course, I can also see how GOP members of the Judiciary Committee may believe they are not up to that task.
Republicans are gleefully talking about the “Biden rule,” noting that back in 1992 then Senator and now Vice President Joe Biden said President George H.W. Bush should not nominate anyone to the court in an election year. That was as stupid an argument then as it is now. For Republicans to use that as the rationale to block any nominee today is the same as a toddler’s argument that “I hit him because he hit me first.”
Republicans, of course, retain the right to vote against a nominee. However, they at the very least owe it to the American people to treat this process seriously and consider the president’s nominees through a hearing and an up or down vote. If they can’t even do that, it will be a clear demonstration that Grassley and his GOP colleagues in the U.S. Senate are guided by the tenets of partisan politics and obstructionism over the Constitution and their larger duty to the country.