“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
“Scarier Than His Friend Ted Cruz”: Why Right-Wingers Want Sen. Mike Lee On SCOTUS
The Republican battle to make Barack Obama’s Supreme Court nominee Merrick Garland go away, and the efforts to pin down GOP presidential candidates on pre-vetted lists of potential Supremes, have all led to increased speculation about the next justice. At present, there’s a major boom among conservatives for Senator Mike Lee of Utah.
Today the Washington Post‘s James Hohmann offers a rundown on all the reasons Lee is enjoying this attention. For one thing, the Utah senator has long been considered Ted Cruz’s best friend in the upper chamber, so if Cruz is elected, it’s a bit of a no-brainer if Lee wants a robe. For another, Lee would probably have an easier time getting confirmed by his colleagues in the clubby Senate than some law professor or circuit-court judge, and might even avoid a Democratic filibuster (assuming Republicans haven’t already killed the SCOTUS filibuster via the “nuclear option”).
But one of the two most important reasons for the Lee boom is buried pretty far down in the story:
Lee is just 44. That means he could squeeze four or more decades out of a lifetime appointment.
Yep. If nominated next year for the Scalia seat, Lee would be the youngest nominee since Clarence Thomas, who has now been on the Court for nearly a quarter of a century, with many years of extremism probably still ahead of him. Before Thomas, you have to go all the way back to Bill Richardson’s favorite justice, Whizzer White, in 1962, to find a nominee as young as Lee would be. As you may have noticed, life expectancy has been going up for Americans in recent decades. For conservatives seeking a permanent grip on the Court and on constitutional law, someone Lee’s age is money.
But the second reason Lee would be significant is only hinted at by Hohmann in the praise lavished on the solon by the Heritage Foundation and longtime right-wing legal thinker Senator Jeff Sessions (the two most likely sources for SCOTUS advice for Donald Trump, as it happens). Lee’s not just any old “constitutional conservative”; he’s a leading exponent of what is called the Lochner school of constitutional theory, named after the early-twentieth-century decision that was the basis for SCOTUS invalidation of New Deal legislation until the threat of court-packing and a strategic flip-flop resolved what had become a major constitutional crisis.
Lee has, on occasion, suggested that child labor laws, Social Security, and Medicare are unconstitutional, because they breach the eternal limits on federal power sketched out by the Founders. Like most Lochnerians, he views the constitution and the courts as designed to keep democratic majorities from stepping on the God-given personal and property rights of individuals and corporations alike. So it’s no surprise he’s been a bitter critic of the deferential view towards Congress expressed by Chief Justice Roberts in the decision that saved Obamacare.
In effect, Mike Lee could become a more influential successor to Clarence Thomas — after overlapping with Thomas on the Court for a decade or two. If Democratic senators have a problem with that possibility, they might want to begin making noises about it so that at least the supposition that Lee is pretty easily confirmable may be called into question.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, April 7, 2016
“Illogical And Irresponsible”: GOP Response To Supreme Court Nomination Makes No Sense And Could Have Big Consequences
We are just beginning to see the consequences of the Senate Republicans’ refusal to consider President Barack Obama’s nominee for the Supreme Court. On Tuesday, the court deadlocked 4-4 on a case involving public sector unions. The tied decision left current law in place, a victory for the unions, but not necessarily a victory for our system of government.
The decision is the second deadlock to come out of the court since the death of Justice Antonin Scalia in February. Last week, the court was evenly split on a case regarding possible bank discrimination.
How long can an evenly split court continue to function? Even in the face of the recent deadlocked decisions, Senate Republicans still refuse to consider the nomination of Merrick Garland for the seat left vacant by Scalia. Their refusal to move forward promises to render an entire branch of our government completely moot.
In a piece for Politico this week, University of Michigan Law School Professor Richard Primus sounds the alarm about the consequences of an incomplete court. He wrote: “A court with eight justices will often deadlock in contested cases, and therefore fail to execute the court’s major function: providing resolution on constitutional issues where the lower courts disagree.” A court that can’t function effectively is dangerous to the delicate balance of power our democracy is built upon. It disables an entire branch of government, removing an important check on the other two. Republicans’ refusal to consider Obama’s nominee means the U.S. Senate is failing in its duty to ensure the continuity of our government and move the country forward. They should reverse course immediately.
Consideration of the nominee does not equate to confirmation. If, after thoroughly vetting Garland, Senate Republicans still find him objectionable, they can vote him down and invite Obama to submit another nominee. This process can continue until both sides arrive at a mutually agreeable result. But to insist that because Obama is in his last year of office the province of filling the Supreme Court vacancy belongs to someone else is irresponsible.
Following that line of thought, all of the House and one-third of the Senate should refrain from voting on anything during election years in case their potential successors might decide something differently. Office holders do not vacate their powers and responsibilities until they are out of office. Obama is still the president. He can take us to war, sign bills into law and nominate Supreme Court Justices. The logic behind the Senate Republicans’ actions is flawed and can have far-reaching consequences.
For over 200 years now, this country has been blessed with peaceful transitions of power that have ensured the survival of our democracy. Administrations have come and gone and political parties have won and lost without creating the instability that is rampant in other parts of the world. This has happened, for the most part, because everyone involved has respected the system enough to let it work. Senate Republicans should let the system work and consider Obama’s choice for the Supreme Court. Any other course of action starts to put our stability at risk.
By: Cary Gibson, Thomas Jefferson Street Blog, U. S. News and World Report, April 1, 2016
“A Gun-Toting, Citizens United–Loving Conservative”: GOP Fights For Hillary Clinton’s Right To Select SCOTUS Nominee
Many have accused Senate Republicans of embracing the nonexistent “Biden rule” and refusing to even hold hearings on President Obama’s Supreme Court nominee for purely political purposes. However, on Sunday, Mitch McConnell and Paul Ryan explained that nothing could be further from the truth.
In a video posted on Twitter, the House speaker earnestly outlined the made-up principle Republicans are fighting to uphold: The American people should get a chance to weigh in on Justice Antonin Scalia’s replacement by selecting a new president (with a mere ten months left in office, President Obama, who was elected twice, doesn’t count).
Simply put: The #SCOTUS nomination is going to have to go to the American people in 2016. https://t.co/AN29xQbfNuhttps://t.co/yWPZzxKKwN
— Paul Ryan (@SpeakerRyan) March 20, 2016
Okay, but lets say the GOP Establishment’s various election plots don’t pan out, and Hillary Clinton is elected president in November. Then during the real lame-duck session (not the entire last quarter of Obama’s second term), Senate Republicans would be willing to consider Judge Merrick Garland, the centrist white guy praised by Democrats and Republicans alike, right? Wrong. “That’s not going to happen,” Mitch McConnell told Fox News Sunday. “The principle is the same. Whether it’s before the election or after the election. The principle is the American people are choosing their next president, and their next president should pick this Supreme Court nominee.”
As Chris Wallace confirmed, that means that Senate Republicans would let Clinton make a nomination rather than holding a vote on Judge Garland. “I can’t imagine that a Republican majority in the United States Senate would want to confirm, in a lame-duck session, a nominee opposed by the National Rifle Association, the National Federation of Independent Business that represents small businesses,” said the majority leader, attacking Garland’s judicial philosophy for the first time. “I can’t imagine that a Republican-majority Senate, even if it were assumed to be a minority, would want to confirm a judge that would move the court dramatically to the left.”
Clearly the smart (not to mention noble) move is to cross their fingers and hope that Clinton nominates a gun-toting, abortion-hating, Citizens United–loving conservative.
By: Margaret Hartmann, Daily Intelligencer, New York Magazine, March 21, 2016
“The Lies Mitch McConnell Tells”: He Knows He’s Lying, You Know He’s Lying, And He Knows You Know He’s Lying
A few words about the pious insincerity of Mitch McConnell.
As you are no doubt aware, McConnell, the Senate majority leader, announced on the very day that Supreme Court Justice Antonin Scalia died that he would refuse to hold hearings on any replacement nominated by President Obama. McConnell’s “reasoning,” if you want to grace it with that word, was that since the president has less than a year left in his term, the appointment should be made by whomever the American people choose as his successor.
Last week, after Obama fulfilled his constitutional duty by nominating respected federal judge Merrick Garland to the post, McConnell renewed his refusal. “The Biden rule,” he said, “reminds us that the decision the Senate announced weeks ago remains about a principle and not a person. It seems clear that President Obama made this nomination not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election.”
The American people, added McConnell, should have a say in this. “So let’s give them a voice. Let’s let the American people decide.”
There are four lies here, each more threadbare and cynical than the last:
1. The Biden rule? There is no such thing. There is only an opinion Vice President Biden expressed 24 years ago as chairman of the Senate Judiciary Committee, that if a vacancy opened on the top court during convention season — which is still several months off — the president should “consider” not nominating a replacement until after the election. It bears repeating: Biden never said the president should not nominate or the Senate should not vote; he only suggested waiting until “after the election” to do so.
2. It’s the president who’s politicizing this? In psychology, that’s known as “projecting.” Around the way, it’s known as the pot calling the kettle black.
3. “A principle and not a person?” No, it’s about a person — the same person, the president — toward whom McConnell and his party have expressed such unremitting disrespect the last seven years.
4. The voice of the people? The people have already spoken — twice — in elections that were not close. For that matter, they are still speaking. A recent Washington Post/ABC News poll says 63 percent of us want the Senate to hold hearings and vote.
McConnell should just claim he’s too busy arranging his sock drawer. That would be more credible than the excuses he’s given.
The quality of a lie is a direct reflection of the respect the liar has for the person being lied to. That will seem counterintuitive, but consider: You put effort into a lie, work to make it plausible, credible, believable, when you have regard for the recipient, when his good opinion matters or his discovery of the truth would be disastrous.
That being the case, what does it suggest when you put as little effort into a lie as McConnell has?
Indeed, while he has been roundly condemned for disrespecting the president, let’s spare some outrage for the way he is also disrespecting us. Not just in failing to do his job, but also in offering such a transparently dishonest rationale for it.
He knows he’s lying, you know he’s lying and he knows you know he’s lying. But you get the sense he doesn’t care. Why should he? Those who need to believe there’s a noble principle behind this obstructionism will be willingly gulled. As to the rest of us, so what?
That’s not statesmanship. It is not even politics. It’s just contempt — and not only for the president. If we cannot count on McConnell and his party to do the country’s business and behave in a manner befitting serious people in positions of responsibility, perhaps it’s not too much to ask that they at least spare us that.
Tell better lies next time.
By: Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, March 23, 2016
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