All of America Loses by Leaving Court Vacancy Open

A couple of former White House counsels — one to Bill Clinton and Barack Obama, one to George W. Bush — came to Des Moines, Iowa, & recently to warn about not having a fully functioning U.S. Supreme Court. By then, it had been 77 days since Obama nominated Merrick Garland to replace the late Justice Antonin Scalia. Yet Iowa’s Charles Grassley, who heads up the U.S. Senate Judiciary Committee, has refused to hold the customary committee hearings on the nominee.

Neither the Democratic nor the Republican former White House counsel had much good to say about Grassley. Nor did Iowa Attorney General Tom Miller, who introduced them. Nor the director of Drake University’s constitutional law center, who moderated their talk. Nor the political science professor who summarized the event. Seldom, it seems, has a panel of legal experts been so unanimous.

Grassley, a Republican who has served 41 years in the U.S. House and Senate, has launched an unprecedented obstruction of Senate procedures, reasoning that with less than a year left on his term, Obama has no right to make so consequential an appointment. But as Miller pointed out, “We thought we had elected him to a four-year term, but he only got a three-year term in terms of appointing people to the U.S. Supreme Court.”

A Democrat currently representing Iowa’s Republican administration, Miller said the Senate Republican majority is de facto amending the U.S. Constitution. Mark Kende, who directs the Constitutional Law Center at Drake Law School, was blunter. “Grassley is not working with or fulfilling his judiciary duties,” he said.

Calling Grassley an “extreme activist” who is “unworthy of the Senate,” Richard Painter, former assistant counsel to Bush, said, “I’ve been involved with the Republican Party for many years, and this is a disaster.”

The event was organized by the Iowa chapter of the American Constitution Society, self-described as a progressive legal organization. But whatever your political views, there was enough there to scare any self-respecting and/or patriotic U.S. citizen. Such as:

•What goes around comes around: Gregory B. Craig, who was White House counsel under Clinton, said if this precedent is allowed to stand, it will damage the presidency for both sides, and not just because it “nullifies the votes of millions and millions of voters.”

“Next time, it could be easier for a Democratic Senate majority not to act on a Republican nominee,” he said.

A legal case could even be made, it was noted, that the Senate is waiving its role by not acting, so the president can proceed with the nomination without its advice and consent.

•Notes of authoritarianism: Painter said if an authoritarian president were elected and proposed that the court function without nine justices, it would lead to the breakdown of an independent judiciary and the separation of powers, ushering in something similar to Germany in the 1930s.

“Imagine a game of baseball where the batter decides he’s not going to swing at anything,” said Painter, because he’s made up his mind the pitcher is no good. “That game’s going to be over pretty soon.”

•Litmus test? Conservatives at the Judicial Crisis Network, which claims to support the rule of law and U.S. sovereignty and reject big government, says in a press release that Grassley is defending its values by “protecting the Second Amendment right to keep and bear arms and shielding Iowa farmers from a liberal-dominated Supreme Court that would defer to unaccountable bureaucrats at the EPA.”

But judges are not supposed to be selected on the basis of how they might rule on particular issues. In fact, Painter said he used to warn against President Bush or his aides asking potential nominees about specific issues, because it would undermine their prospects if those conversations came up in confirmation hearings. Craig said Obama looks for three things in selecting a justice: a rigorous intellect and mastery of the law; an understanding of the limitations of the judiciary’s role, and respect for precedent; and a life experience that includes having overcome obstacles and barriers. Craig said Garland has all those qualities.

•Dysfunctional court system: Panelists agreed that with eight current members, resulting in split decisions, the court will just take up the easier cases while major ones such as affirmative action, immigration, and certain medical coverage, go undecided. There will be less checks and balances on the executive branch.

In an interview, Painter said this will also undermine U.S. economic leadership, since a functioning judiciary is critical to foreign investors deciding to invest here, where they are assured of “fair-minded adjudication.” This will do “huge damage to our ability to be a leader anymore,” he said.

“We are undermining the legitimacy of the judicial system by not allowing it to function,” said Rachel Caulfield, a Drake associate political science professor, urging Americans to speak out.

•That so-called “Biden rule”: Grassley supporters have pointed to what they call “the Biden rule,” in reference to a 1992 statement by then Senate Judiciary Committee Chairman Joe Biden, when George H.W. Bush was president. Biden said if there were a court vacancy, it should be voted on after the elections. But not only was there no vacancy to vote on then, the Senate also never adopted such a rule.

The ideological counterpart of the Constitution Society is the Federalist Society, which describes itself as conservatives and libertarians who believe “the state exists to preserve freedom and the separation of governmental powers is central to our Constitution.” In 2010, discussing the retirement of Justice John Paul Stevens and the nomination and confirmation process, the Federalist Society did a podcast. One of the speakers was David Stras, a Minnesota Supreme Court justice who has shown up on Donald Trump’s short list of prospective Supreme Court nominees. Stras expressed support for Merrick Garland. “If history is any guide,” he said, “President Obama would not be hesitant to nominate someone like Judge Merrick Garland, who is acceptable to Republican senators and would not create a bitter confirmation battle.”

Prescient words from someone who could find himself facing the same obstruction, now that that door has been opened.