As chairman of the Senate Judiciary Committee, Senator Chuck Grassley of Iowa is at least nominally responsible for refusing to hold a hearing for Merrick Garland, the president’s nominee to replace Antonin Scalia on the Supreme Court. I say ‘nominally’ because it’s not clear that the decision is truly Grassley’s or how free he is to cross Senate Majority Leader Mitch McConnell of Kentucky.
What is clear is that Grassley is fully on board with the obstructive strategy, as he made clear in a February 26th blog post on his Senate website.
Yesterday, he elaborated on his rationale during a speech on the Senate floor. I first became aware of the speech because Senate Minority Leader Harry Reid’s Deputy Chief of Staff, Adam Jentleson, blasted out a press release (bold in original):
In an epic display of buck-passing, an unglued Senator Grassley attacked Chief Justice John Roberts from the Senate floor, blaming Roberts for politicizing the Supreme Court.
These are truly wacky remarks coming from the Chairman of the Judiciary Committee.
Combined with Senator Grassley’s strange CPAC remarks a few weeks ago (“I feel it’s about time that we have a national debate on the Supreme Court and its role in government”), one starts to wonder if Senator Grassley has a creative, albeit incoherent and self-serving, moon-landing-was-faked type theory of the Supreme Court that he’d like to discuss further.
Considering that Jentleson was calling Grassley’s performance ‘wacky’ and compared it to moon-landing denial, I expected to see some pretty unhinged remarks, but that’s not what I discovered when I read the transcript. Instead, I saw a very rational explanation for why the Senate confirmation process for federal judges has become so contentious and divisive.
The starting point for Grassley’s floor speech was a reference to remarks that Chief Justice John Roberts made shortly before Antonin Scalia died on February 13th. Here’s that segment of Grassley’s introduction:
…in a speech shortly before Justice Scalia’s death, Chief Justice Roberts maintained that the public wrongly thinks the Justices view themselves as Democrats or Republicans.
Of course, it’s irrelevant to the public how the Justices view themselves. What’s troubling is that a large segment of the population views the Justices as political.
It’s appropriate and instructive, then, to ask why the public takes this view, and whether it’s warranted.
I believe the public’s perception is sometimes warranted.
The Chief Justice ruled out that this perception has anything to do with what the Justices have done. Instead, he attributes it to the Senate’s confirmation process. As he sees it, senators ‘frequently ask us questions they know it would be inappropriate for us to answer. Thankfully, we don’t answer the questions.’
The Chief Justice also stated, ‘When you have a sharply divided political divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. You know if the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some members of the public to think, well, you must be identified in a particular way as a result of that process.’
Grassley then proceeded to say that on the one hand, precisely because Justice Roberts is correct to be concerned about how new justices are perceived, it’s a bad idea to have a confirmation hearing in the heat of a presidential election. While, on the other hand, according to Grassley, the Chief Justice has it all wrong:
But in another respect, the Chief Justice has it exactly backwards. 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.
In short, the Justices themselves have gotten political. And because the Justices’ decisions are often political and transgress their constitutional role, the process becomes more political.
You might think this is just a partisan and highly contentious argument, but let’s give Grassley a chance to flesh it out a little.
The Chief Justice regrets that the American people believe the court is no different from the political branches of government.
But again, with respect, I think he is concerned with the wrong problem. He would be well-served to address the reality, not the perception, that too often, there is little difference between the actions of the court and the actions of the political branches.
Grassley then notes how easy it is to predict how the Justices will vote on most ‘hot-button’ issues that divide the Court.
As the Chief Justice remarked, although many of the Supreme Court’s decisions are unanimous or nearly so, the Justices tend to disagree on what the Chief Justice called the ‘hot button issues.’ We all know what kinds of cases he had in mind. Freedom of religion, abortion, affirmative action, gun control, free speech, the death penalty, and others.
The Chief Justice was very revealing when he acknowledged that the lesser known cases are often unanimous and the ‘hot button’ cases are frequently 5-4.
But why is that?
The law is no more or less likely to be clear in a ‘hot button’ case than in other cases.
For those Justices committed to the rule of law, it shouldn’t be any harder to keep personal preferences out of politically charged cases than others.
There’s a lot to critique in Grassley’s overall argument. He’s implicitly saying that the correct interpretation of the Constitution isn’t open to interpretation. And he’s setting an impossible standard that rulings on laws, which are political products, should be completely divorced from any political influence. But there’s one area where he is right.
What’s really animated the Conservative Movement’s anger with the Supreme Court, going back to Brown v. the Board of Education, is the fact that the Court has delivered political defeats that the legislatures were powerless to deliver. So, when Congress couldn’t end school desegregation, the Warren Court did it for them. When Congress couldn’t make abortion legal and accessible, the Burger Court did it for them. And the Courts cut them off from having prayer in school, and from banning gay marriage, and so on.
So, the reason that Supreme Court nominations became so contentious is that Conservatives used their political power to defend a system of racial apartheid, to prevent the liberation of women, to impose their religious superiority, and to discriminate in general, including against the LGBT community. And the Court stopped them either completely or partially.
Thereafter, controlling the Court became the only way for Conservatives to reverse these changes and to prevail politically. And, since Conservatives drifted away from the Democratic Party and seized control of the GOP, the Republicans are much more animated than Democrats when it comes to judicial nominations.
After all, if the Democrats win big majorities in Congress, they can achieve their goals, like vastly expanding access to health care. But Republicans cannot ban abortion legislatively unless they can amend the Constitution. They can’t re-ban gay marriage legislatively, either. They can’t get prayer back in schools by passing a law.
So, in this sense, Grassley isn’t crazy. He doesn’t sound like a man raving about how the Apollo 11 mission was faked.
He’s making an accurate presentation of the history of and the stakes in Supreme Court judicial confirmations.
But, if we ask a different question, we may get a more sensible answer.
Why has the Supreme Court acted politically to stymie conservative values? Why did the Warren Court end apartheid? Why did the Burger Court legalize abortion? Why did the Roberts Court legalize gay marriage?
The answer every time is that the did it because the Conservatives would not budge. And that’s why Teddy Kennedy wasn’t being too overdramatic when he opposed the nomination of Robert Bork by saying:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.
It might not have been true that Bork would have gone that far if he had been confirmed. Even he recognized that the country had changed. But ‘Bork’s America’ stood in the way of desegregation and legal abortion and secular public schooling, and without a Supreme Court to step in and intervene, this country would have remained Bork’s America.
Which means, in my book, that the Supreme Court acted politically because Conservatives were so deeply wrong. Of course it would have been preferable for legislatures to do the right thing rather than relying on the Court to rectify things, but we could only wait so long. Were we forever going to try to compete with the Soviets in the Third World while operating a system of apartheid in our Southern states?
So, I don’t think Grassley was making a wacky argument. I understand exactly why he thinks the Supreme Court has brought this divisiveness on itself. They did it to overcome the deplorable and inexcusable wrongness of the Conservative Movement.
But, who’s really to blame here?