Floor Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Politicizing the Court
Wednesday, March 2, 2016
Mr. President, by now everyone is pretty familiar with the Biden Rules. I won’t take the time to go over all of them again, but they boil down to a couple basic points.
First, the President should exercise restraint, and “not name a nominee until after the November election is completed.”
Or, stated differently: The President should let The People decide.
But if the President chooses not to follow this model but instead, as Chairman Biden said, “goes the way of Fillmore and Johnson and presses an election-year nomination,” then, the Senate shouldn’t consider the nomination, and shouldn’t hold hearings.
It doesn’t matter, as Chairman Biden said, “how good a person is nominated by the President.”
The historical record is pretty clear.
But we haven’t talked as much about one of the main reasons Chairman Biden was so adamant that shouldn’t consider a Supreme Court nominee during a heated presidential election.
It’s because of the tremendous damage such a hyper-political environment would cause the court, nominee, and the nation.
In short, if the Senate considered a Supreme Court nominee during a heated presidential election campaign, the court would become even more political than it already is.
That’s a big part of what was driving Chairman Biden in 1992.
Here’s how Chairman Biden described the problem in an interview about a week before his famous speech in 1992:
"Can you imagine dropping a nominee . . . into that fight, into that cauldron in the middle of a presidential year?"
"I believe there would be no bounds of propriety that would be honored by either side. . . . The environment within which such a hearing would be held would be so supercharged and so prone to be able to be distorted."
As a result, Chairman Biden concluded:
"Whomever the nominee was, good, bad or indifferent … would become a victim."
My friend then considered the tremendous damage that thrusting a Supreme Court nominee into a frenzied political environment would cause, and weighed it against the potential impact of an eight member court for a short time.
He concluded that the “minor” cost of the “3 or 4 cases” that would be reargued, are nothing compared to the damage a hyper-politicized fight would have on, “the nominee, the President, the Senate, and the nation, no matter how good a person is nominated by the President.”
The former Chairman concluded that because of how badly such a situation would politicize the process, and based on the historical record, the only reasonable and fair approach, or as he said, the “pragmatic” approach, is to not consider a nominee during the Presidential election.
As he said:
“once the political season is under way… action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.”
And that’s why Chairman Biden concluded that:
Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.
This, in part, is why Chairman Biden went to such lengths to explain the history of the bitter fights that occurred in presidential years. As he said:
“Some of our nation's most bitter and heated confirmation fights have come in Presidential election years.”
So, let me just say this about the discussion we’re having today.
Everyone knows this nominee isn’t going to get confirmed.
Republicans know it.
Democrats know it.
The President knows it.
Even the press knows it.
That’s why, for instance, the Washington Post called the President’s future nominee a “judicial kamikaze pilot” and the New York Times noted that the nominee would need an “almost suicidal willingness to become the central player in a political fight that seemed likely to end in failure.”
So, the only question is, why would the other side come to the floor to express “outrage” about not having a hearing?
Mr. President, it’s because they want to make this as political as possible.
The press has already picked up on it.
For instance, CNN reported that the other side hopes to use a fight over a Supreme Court nominee to “energize the Democratic base.”
And they’re already using the Supreme Court, and the eventual nominee, as a political weapon.
They want nothing more than to make the process as political as possible.
That’s why the President wants to push forward with a nominee who won’t get confirmed.
That’s why the other side is clamoring for a hearing on a nominee everyone knows won’t get confirmed.
And making the court even more political is the absolute last thing the court needs.
The court has been politicized enough already.
A recent Gallup poll documents the frustration I hear expressed at the grassroots in Iowa.
In the six years since Obama has appointed two Justices, the American people’s disapproval of the Supreme Court jumped from 28 percent disapproval in 2009, to 50 percent disapproval in 2015.
That’s what happens when Justices legislate from the bench.
That’s what happens when Justices make decisions based on their personal policy preferences, or what’s in their “heart,” rather than on the Constitution and the law.
The last thing we need is to further politicize the process and the court.
So, I just want to make sure everyone understands what all of this “outrage” is really about. It’s about making this process as political as possible.
We aren’t going to let that happen to the court, the nominee, or the nation.
We’re going to have a debate about what kind of Justice the American people want on the Supreme Court.
That’s what the American people deserve.
And that’s why we’re going to let the people decide.
Beyond just one justice, there's an even more basic debate here.
Because at my town meetings often somebody will come in very outraged about why I won’t impeach those Supreme Court justices. They say “they're making law instead of interpreting law. How come you put up with that?”
So we can have a debate between the Republican nominee and the Democrat nominee on what is the constitutional role of the court.
And we can have a debate about whether as the President says, we want somebody who expresses empathy and understanding of people's problems.
As we all know, that's not the purpose of the judicial branch of government.
That branch of government isn't supposed to let their personal feelings be involved whatsoever.
The President should not encourage that of justices he appoints.
Their job is to look at what the law says, the Constitution says, the facts of the case, and make that impartial judgment.
It would even go to the point of a justice appointed to the Supreme Court by a Republican who, when issued a decision that somehow the Affordable Care Act didn't fit into what Congress could do under interstate commerce, because then maybe that case could not be approved.
But that justice then decides to go to the taxing powers of the federal government instead. That’s a way that this President can have his legacy approved.
Now, that's a justice nominated by a Republican president who said that.
Those justices were trying to find all kinds of ways to do what you want to do as opposed to what the Constitution requires or what Congress wrote in legislation.
It would be nice to have a debate between a Democrat nominee and a Republican nominee, whether we have two, three, four national debates, or whether they have hundreds of appearances around the country, to have these basic constitutional issues discussed.
Then let the people decide.
Not just on one justice, but what the role is of the Supreme Court, or the courts generally, in our constitutional system.
I yield the floor.