Senators Squabble Over Chief Justice’s Criticism of Confirmation Process

Chief Justice John Roberts.
Chief Justice John Roberts.

The standoff in the Senate over the next Supreme Court justice has drawn the chief justice of the high court into the fray.

In a discussion 10 days before the unexpected death of Justice Antonin Scalia, Chief Justice John Roberts criticized the confirmation process as unproductive and one that politicizes the judges.

On Tuesday night, Senate Judiciary Chairman Charles E. Grassley took to the floor to say Roberts “has it exactly backwards” in that respect.

“The justices themselves have gotten political,” the Iowa Republican said. “In fact, many of my constituents believe with all due respect that the chief justice is part of the problem. They believe that the number of his votes have reflected political considerations, not legal ones.”

His criticism of Roberts, who was appointed by a Republican president, drew the ire of the Senate’s leading Democrat, Minority Leader Harry Reid of Nevada, on Wednesday.

“I’m here because [Roberts] has been attacked without cause by the chairman of the Judiciary Committee,” said Reid. He later added: “His observations about the Supreme Court confirmation process have obviously struck a nerve in the Republican caucus.”

Roberts’s comments came to light following Scalia’s death in February, as the Senate faced off over whether any nominee put forward by President Barack Obama should receive consideration during an election year. Obama has since named Merrick Garland, chief judge of the Court of Appeals for D.C., as his pick.

Republicans have vowed not to hold a hearing or a vote on Garland, arguing the American people should have a say in the court’s direction through their vote in November’s presidential election. The position has frustrated and enraged Democrats, who have been pushing for Garland to be considered and have waged a public campaign accusing Republicans of not doing their jobs.

Underscoring the debate is the widespread belief that replacing the conservative stalwart Scalia with the centrist Garland would essentially shift the political make up of the court.

Accusations of politicizing the court have flown in both directions in the Senate, which made Robert’s comments about the court even more timely. Roberts said in the discussion at the New England School of Law that recent contentious confirmation hearings have created the perception that judges are political.

“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it, will be viewed in those terms,” said Roberts in early February. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”

But Grassley disagreed.

“The confirmation process doesn’t make the justices appear political. The confirmation process has gotten political precisely because the court has drifted from the constitutional text, and rendered decisions based instead on policy preferences,” retorted Grassley. “In short, the justices themselves have gotten political.”

Later in his speech, Grassley implored Roberts, “Physician, heal thyself.”

Reid then took to the floor to defend Roberts, who was appointed to the court by George W. Bush.

“I say to the senior senator from Iowa: Justice Roberts isn’t the one who needs healing,” said Reid. “What needs mending is the Judiciary Committee under his leadership. He is the next political arm of the Republican leader’s office.”

Grassley has become a key target for Democrats who are still hoping Republicans will back down on the Garland nomination. But Grassley and Senate Majority Leader Mitch McConnell have shown no signs of wavering. McConnell (R-Ky.) has said he will not meet with Garland. Grassley, on the other hand, is planning breakfast with the nominee on April 12, the Senate Judiciary Committee announced in a tweet.