“Chuck Grassley’s Supreme Court Coup”: To Protect The Court From Politics, Seat Nine Chuck Grassleys And Go Home
Sen. Chuck Grassley is in a tough spot. The Republican from Iowa, who chairs the Senate Judiciary Committee, has to decide whether or not to grant Judge Merrick Garland a hearing or to continue the unprecedented obstruction of President Obama’s Supreme Court nominee. When a guy dressed like Ben Franklin is trolling you through town halls in Iowa, you know you’re in trouble.
But Grassley’s bigger problem is that he has indicated in the past that he knows better than to take a torch to the Supreme Court for the sake of partisanship. Like most court-watchers, Grassley is well aware that the institution is often political, and that it always has been. But like most court-watchers, he is also aware that the continued viability of the institution rests on the jagged myth that the court can transcend politics and those moments when the court actually lives up to that ideal.
Grassley surely knows better than most that the court has only the public’s esteem to shore it up—and he knows better than anyone that the public trust demands at least some confidence the judicial project is about more than brute power and party loyalty.
Grassley knows all that, but as pressure on him has ramped up to hold hearings—and a vote—on a seat that remains empty, he’s apparently decided it doesn’t matter anymore. On Tuesday, Grassley gave a speech that went after the Supreme Court as a purely political institution, pantsing the entire high court, and Chief Justice John Roberts by name, on the floor of the United States Senate. In so doing, he not only damaged the Senate’s relationship with the court in a way he may not be able to repair, but also exposed his own hypocrisy as chairman of a judiciary committee tasked with ensuring that the court can function.
Grassley went after Roberts specifically for having the temerity to give a speech before Justice Antonin Scalia’s death, where he noted that “the [nomination] process is not functioning very well” and that well-qualified nominees—including current Justices Samuel Alito, Elena Kagan, and Sonia Sotomayor—should have been confirmed along bipartisan lines.
No way, said Grassley. If politics have overtaken the nomination process, it’s the court’s fault. “What’s troubling is that a large segment of the population views the justices as political,” Grassley said. And whose fault is that? “The justices themselves have gotten political,” he declared. “And because the justices’ decisions are often political and transgress their constitutional role the process becomes more political.” In fact, Grassley added, (apolitically) his own constituents believe that Roberts “is part of this problem.”
“They believe that the number of his votes have reflected political considerations, not legal ones,” Grassley continued, adding with a flourish “so, physician, heal thyself.” To add a little mob flair, he then warned the chief not to insert himself into Garland’s nomination fight.
To be fair to Grassley here, we should consider: Isn’t he just telling the truth about politics influencing court opinions?
The problem with this defense is that the judiciary chair’s double-helix of hypocrisy gives him no standing to call out Roberts or any member of the court. Grassley has—at various times in his career—argued that the court is different from the other two patently political branches. For instance: In January 2006, with Alito having just been appointed to the high court, Grassley argued that the politics had nothing to do with the nomination process, nor the court. “The Senate’s tradition has been to confirm individuals who are well qualified to interpret and to apply the law and who understand the proper role of the judiciary to dispense justice,” he said. This coming from the man who is now arguing that politics is the reason we can’t have a hearing.
But the extra special hypocrisy sauce here is that Grassley now says that the only way to depoliticize the court would be to appoint nominees who conform their political views to those of the Republican Party. “Justices appointed by Republicans are generally committed to following the law,” he said. And then he argued that the court is too political because Republican nominees don’t act sufficiently politically. “There are justices who frequently vote in a conservative way,” he said. “But some of the justices appointed even by Republicans often don’t vote in a way that advances conservative policy.”
Wait, what? So the problem for Grassley isn’t “political” justices—it’s justices appointed by Republicans who don’t advance “conservative policy” 100 percent of the time. And with that, he revealed his real issue. His Senate floor attack isn’t about depoliticizing the court at all. It’s about calling out Roberts for being insufficiently loyal to the Tea Party agenda when he voted not to strike down Obamacare.
What is really being said here is that there is only one way to interpret the Constitution and that is in the way that “advances conservative policy.” According to Grassley’s thinking, a justice who fails to do that in every single case before him or her is “political” and damaging the court. By this insane logic, the only way to protect the court from politics is to seat nine Chuck Grassleys and go home. And to achieve this type of court he will stop at nothing, including trash talking the entire institution from the Senate floor and threatening the chief justice who will, because he is chief justice, decline to respond.
Again, remember back at the time of the fight over Alito when the same Sen. Grassley warned, “the Supreme Court does not have seats reserved for one philosophy or another. That kind of reasoning is completely antithetical to the proper role of the judiciary in our system of government.” What that seems to have meant in retrospect: There is only a single judicial philosophy and if I don’t get a nominee who shares that philosophy, I’ll happily slander the whole court.
Grassley’s aides like to claim that he believes in his heart that this unexpected election-year vacancy offers the country a rare opportunity for a national debate about the role of the Supreme Court. We have a forum for just such a debate. It’s called a confirmation hearing. But Grassley doesn’t want a debate. He wants a coup.
Speaking Thursday afternoon at the University of Chicago Law School on the court’s role, President Obama warned against exactly this form of dangerous and destructive politics. When people “just view the courts as an extension of our political parties—polarized political parties” he warned, public confidence in the justice system is eroded. “If confidence in the courts consistently breaks down, then you see our attitudes about democracy generally start to break down, and legitimacy breaking down in ways that are very dangerous.”
Sen. Grassley has made the choice to hold no hearings and have no vote for an eminently qualified jurist because—as he has now openly stated—there are only two legitimate justices on the Supreme Court, the two who agree with his viewpoint 100 percent of the time. Grassley, and the rest of his Republican colleagues who continue to refuse hearings and a vote on Merrick Garland, have seamlessly and shamelessly turned the entire judicial branch into their own, private constitutional snowglobe.
By: Dahlia Lithwick, Slate , April 7, 2016
“Just The Way They Do Business”: The Conservative Go-For-Broke Legal Strategy Suffers A Blow
These days, conservatives don’t suffer too many unanimous defeats at the Supreme Court, even in its currently unsettled status. But that’s what happened today, when the Court handed down an 8-0 ruling in a case called Evenwel v. Abbott, which had the potential to upend an understanding of democratic representation that has existed for two centuries, and give Republicans a way to tilt elections significantly in their favor before anyone even casts a vote.
The conservatives lost. But losing cases like this one is part of the way they do business. With a (usually) friendly Supreme Court, in recent years they’ve employed a strategy of maximal legal audacity, one that has yielded tremendous benefits to their cause.
This case was a relatively low-profile part of a comprehensive conservative assault on voting rights — or perhaps it’s more accurate to call it an assault on the ease with which people who are more likely to vote Democratic can obtain representation at the ballot box. The question was about how state legislative districts are drawn, and the principle of “one person, one vote.” We’ve long had a legal consensus that all districts in a state have to be approximately the same size, to give everyone equal representation; a state legislature can’t draw one district to include a million people and another district to include only a thousand (although you might point out that we do have a legislative body that violates this principle; it’s called the United States Senate, where Wyoming gets one senator for every 300,000 residents and California gets one senator for every 20 million residents).
The plaintiffs in Evenwell argued that instead of using population to draw district lines, states should use the number of eligible voters. Apart from the fact that we know population numbers fairly precisely because of the census, and we have no such precision regarding eligible voters, that would exclude huge swaths of the public. You might immediately think of undocumented immigrants, but counting only eligible voters would also mean excluding people with green cards on their way to citizenship, children, and those who have had their voting rights taken away because of a criminal conviction. In practice, drawing districts this way would almost inevitably mean taking power away from urban areas more likely to vote Democratic and sending power to rural areas more likely to vote Republican. Which was of course the whole point.
This case was a real long shot from the beginning, as you might gather from the fact that the conservative activists who filed it were suing the state of Texas, which is controlled by Republicans and is not exactly enthusiastic about ensuring everyone’s voting rights (the state’s incredibly restrictive voter ID law is still working its way through the courts). The problem they ran into came from the fact that the lawsuit alleged not that a state may draw districts based on the number of eligible voters and not the population, but that it must draw districts that way. That was the only way for them to file the suit, since they were trying to force Texas to change how it was drawing districts.
Since Texas had chosen to use population, just as every other state does and always has, in order to force a change the plaintiffs wanted that method declared unconstitutional. If they had prevailed, that could have meant that every state legislative district in the country would have had to be redrawn. As Ruth Bader Ginsburg wrote in the ruling, “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”
About the legal audacity I mentioned before: As unlikely as this case may have been to succeed, it’s another reminder of how legally aggressive the right has been lately. Again and again, whether it’s about voting rights or the Affordable Care Act or some other issue, they’ve come up with some novel legal theory that at first gets dismissed as completely absurd, then begins to sound mainstream as conservatives see an opportunity to gain a victory and rally around it. Even if they ultimately lose in court, the controversy can open up new legal and political avenues that hadn’t been evident before.
They lost today, and if you get Samuel Alito and Clarence Thomas to agree with Ruth Bader Ginsburg and Sonia Sotomayor that your claim is bogus, you know you’ve gone pretty far. But this case leaves an open question, which is whether a state can switch to an eligible-voter count in order to draw its districts if it chooses. No state has chosen to do that, but don’t be surprised if now that the issue has gotten some attention, conservative Republican legislators in deep-red states — particularly those with large numbers of Latino immigrants — start proposing it. I’d keep my eye on Texas.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, April 4, 2016
“Are You Liberal Or Are You Conservative?”: I No Longer Have Any Idea What “Conservative” Means
About 20 years ago, when the syndicate that represents this column was preparing to pitch it to newspaper editors, I was called in for a meeting with the sales staff and somebody asked me this question:
“Are you liberal or are you conservative?”
I said, “Yes.”
I wasn’t trying to be a wiseguy. OK, maybe a little. But I was also trying to convey my impatience with our bipolar political discourse, with the idea that I was required to pick a team. I was trying to preserve for myself the right to think a thing through and come to my own conclusion regardless of ideological branding.
But at the same time, I knew what I was being asked. When they said, “Are you liberal or are you conservative?” those words had concrete meaning, embodied real political concepts.
But that is no longer the case — at least where the latter term is concerned.
Once upon a time, when a person identified as conservative, you knew the ideas he or she meant to convey — low taxes, small government, resistance to social change. But a word that once encoded a definite set of values and beliefs now seems utterly bereft of internal cohesion, less a name for an ideology than for a mood: surly, nasty and put-upon.
They don’t like the rest of us. Nor do they seem to like each other all that much, feuding with a bitterness and constancy that would make even the Hatfields and McCoys tell them to tone it down. Yes, ideology still gets lip service, but its importance has become secondary, if that.
How else to explain that people who once considered Christian faith their foundation stone have coalesced behind a candidate who can’t name a Bible verse? Or that people who once valued a grown-up, clear-eyed approach to foreign policy support candidates who want to “carpet bomb” the Middle East and pull out of NATO? Or that people who once decried “a culture of victimization” now whine all day about how they are victims of biased media, bullying gays and political correctness?
How to explain that people who once vowed to safeguard American moral decency from the nefarious irreverence of liberals — think President Bush chastising “The Simpsons” in the era of “family values” — now put forth candidates who tell penis jokes?
A few days ago New York Times, columnist David Brooks professed to be excited by this act of self-immolation — “This is a wonderful moment to be a conservative,” he gushed — because after this debacle, conservatives will be able to reinvent themselves, unencumbered by “existing mental categories and presuppositions.” Like when a comic book or movie franchise gets re-booted, I suppose. One had the sense of a man desperately painting lipstick on a pig.
The right is rotting from within, putrefying on its own grievance and rage. It seems bereft of core values and beliefs unless you count its determination to always oppose anything the left supports, up to and including motherhood and sunshine. That’s as close to principle as conservatives come these days.
Given the way they have spurned their party’s 2012 election “autopsy” report, which called for greater inclusion and a gentler tone, one wonders if these folks are capable of, or even interested in, the reinvention Brooks predicts. Conservatives do not need to be “liberal-lite” — no ideology has a monopoly on good ideas. On the other hand, when your base is the Ku Klux Klan, Ted Nugent and people sucker-punching strangers at rallies, it’s a sign that a little self-reflection is overdue.
“Are you liberal or are you conservative?”
I had a smart aleck answer 20 years ago. But it occurs to me that if they asked that now, I’d have to request clarification. My worldview hasn’t changed.
But I no longer have any idea what “conservative” means.
By: Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, March 3, 2016
“Since When Is Kelly Ayotte A “Moderate”?”: The Disappearance Of Actual Republican ‘Moderates’ Is A Problem
The New York Times reported yesterday on the electoral challenges facing Sen. Kelly Ayotte (R) in New Hampshire this year, given the factors in the 2016 race, some of which the incumbent senator can’t control. The headline read, “Tough Re-election for G.O.P. Moderate Is Getting Tougher.”
She may not always telegraph it, but Ms. Ayotte, a freshman senator, is locked in a herculean battle with the state’s popular Democratic governor, Maggie Hassan. As one of five Senate Republicans running for re-election in states that supported President Obama in both 2008 and 2012, Ms. Ayotte is seen as particularly vulnerable this November. […]
Six years ago, Ms. Ayotte was part of a Republican wave…. For Ms. Ayotte and other Republicans from that class, 2016 was always going to be a difficult year to run for re-election because more Democrats vote in presidential years. But with the possibility that Donald J. Trump, the most divisive Republican presidential candidate in a generation, will be at the top of the ticket, the party’s task may be all the more arduous.
The broader assessment seems entirely right: the GOP incumbent faces a strong Democratic challenger in a year in which Republicans in competitive states are likely to struggle. Walking the electoral tightrope will pose challenges.
But it’s the wording of the headline that jumped out at me: since when is Kelly Ayotte a “moderate”?
It’s challenging because, by some measures, Republican moderates no longer exist in any meaningful sense. FiveThirtyEight’s Nate Silver published an analysis last fall that noted, as a quantifiable matter, “The most conservative Republicans in the House 25 or 30 years ago would be among the most liberal members now.”
As GOP politics have become increasingly radicalized, what passes for Republican moderation has no real connection to anything resembling mainstream American centrism. Indeed, by most measures, Kelly Ayotte may not have a reputation as a wild-eyed partisan bomb-thrower, but her actual record is one of a far-right conservative.
Ayotte co-sponsored Ted Cruz’s bill to repeal the Affordable Care Act, for example, without a replacement plan for the millions who’d lose their coverage. She filibustered a bipartisan bill to expand background checks before gun purchases. She’s voted, several times, to defund Planned Parenthood*. She joined the far-right in rejecting emergency disaster relief for Hurricane Sandy victims.
The list goes on. Ayotte rejected a clean debt-ceiling increase needed to prevent national default. She voted for Paul Ryan’s right-wing budget plan. She rejected a proposed increase of the federal minimum wage to $10.10 an hour. Though she later regretted it, Ayotte even went along with her party’s government-shutdown scheme in 2013.
According to the most recent available information on the group’s website, the Club for Growth gives Ayotte a lifetime rating of 81% – and as of a few years ago, it was even higher. It’s partly why she’s been a featured guest at far-right gatherings such as the Conservative Political Action Conference (CPAC).
Indeed, as I type, Ayotte has joined her party’s unprecedented Supreme Court blockade, rejecting a qualified nominee for reasons she and her party are still struggling to explain – a move even some of her GOP colleagues consider indefensible.
Sure, there are exceptions – Ayotte voted, for example, for the Gang of Eight’s immigration reform package – and the New Hampshire senator is hardly the most far-right member in the chamber, but the fact remains that there’s simply nothing about her record that says “moderate.”
My point is not to pick on the New York Times for the misplaced ideological label. Rather, what I think the Ayotte example offers is a reminder that the political world needs to rethink these assessments altogether, recognizing that actual Republican moderates are an endangered species, and being slightly less radical than extremists does not a moderate make.
When major news organizations start to think anyone to the left of Tom Cotton has credibility as a centrist, we lose sight of what matters: the Republican Party’s shift to the far-right has changed the nature of American politics in fundamental ways. Calling actual conservatives “moderates” only exacerbates the problem.
* Disclosure: My wife works for Planned Parenthood, but she played no role in this piece.
By: Steve Benen, The Maddow Blog, March 30, 2016
“Many Republicans Won’t Back Trump, And Trump Voters Hate Cruz”: Could A Downballot Wave For Democrats Be Coming?
David Brooks notwithstanding, this is not a wonderful moment to be a conservative. A new poll out of California highlights the disaster looming for the Republican Party across the nation, but particularly in blue states.
The most troubling problem is that even in a big blue state like California, Trump holds a commanding 7-point lead over Ted Cruz. As Trump will certainly hold the plurality of delegates entering the national GOP convention, Republicans are currently trying to figure out whether to back him and let come what may, or wrest the nomination from him in a brokered convention. But the brokered convention strategy relies mostly on Trump’s not reaching an outright delegate majority–a question that may not be resolved until California’s large batch of delegates is determined. If the business magnate wins big in California, he will probably reach the delegate majority he needs, crushing establishment hopes of subverting his nomination.
But the even more troubling issue for Republicans is that the party is deeply, deeply divided no matter what they do. Many moderate and evangelical Republicans despise Trump and say they will not vote for him. Meanwhile, Trump’s voters cannot stand Ted Cruz:
A quarter of California Republican voters polled said they would refuse to vote for Trump in November if he is the party’s nominee. Almost one-third of those backing Trump’s leading competitor, Texas Sen. Ted Cruz, said they would not cast a ballot for Trump. Voters who back Trump, meanwhile, are critical of Cruz, with only half holding a favorable impression of him.
Much of this is probably overblown, of course: when Republicans are faced with the prospect of a Clinton or Sanders presidency, the vast majority will still hold their nose and toe the line for the GOP. But these numbers constitute an unprecedented level of disaffection with their choices. That’s understandable: many ideological and theocratic conservatives don’t feel they can trust Trump on policy, establishment and future-minded Republicans know that his racist appeals will destroy their future, even as more moderate, populist and ideologically flexible Republicans are turned off by Cruz’ oily cynicism and radicalism.
Even a modest drop in turnout by the GOP in blue states and districts could lead to a downballot debacle for the Republican Party, and could even cost them the majority in the House given a big enough wave. The Cook Political Report and other prognosticators have revised their house race projections to account for the Trump effect (and quite possibly for the Cruz effect as well.)
So far, the GOP has latched itself to the hope that even if it must throw away the presidency this cycle, it can count on control of the House, the Supreme Court and most legislatures. With Scalia’s passing the Supreme Court is lost given a Democratic win in 2016, the Senate will likely change hands, and their House majority seems set to shrink or even disappear. Many legislatures may also flip as well given a wave election.
Things can change, of course: an economic downturn or major terrorist attack could alter the landscape significantly. But as things stand, circumstances are ripe for a GOP debacle up and down the ballot.
By: David Atkins, Political Animal Blog, The Washington Monthly, March 27, 2016
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