Pressure will now grow only more intense for Senate Republicans to reverse course and start a Supreme Court confirmation process, and none will feel that increasing force more than Judiciary Committee Chairman Charles E. Grassley.
His own words from three decades ago are going to become part of the effort to win a change of heart from the notoriously stubborn Iowan -- the latest volley in the “If that was then, why isn’t it this now?” exchange of grainy video clips punctuating this year’s biggest partisan standoff.
“The dangers of politicizing the nomination process are exceeded only by its short-sightedness,” Grassley declared in 1987. “After all, presidential elections and Supreme Court nominations come and go. I urge my colleagues to resist the clarion call of raw politics that undermines the independent judiciary.”
It’s already completely clear how both side’s hands are sullied with evidence of hypocrisy and situational posturing in debates about their “advice and consent” standards for potential justices on the high court.
But the pronouncements Grassley made then about the importance of regular order for such confirmations, which totally contradict the view he’s espousing now, are particularly noteworthy. That’s because Grassley was assigned by his GOP leadership last month to take charge of announcing and touting the centrally important relevance of “the Biden Rules” – based on a speech Joseph R. Biden Jr. made as a Delaware senator two decades before he became vice president.
As the Judiciary chairman for the Democrats when Republican President George H.W. Bush was seeking re-election, Biden declared that Senate consideration of any potential Supreme Court pick “once the political season is under way” would be “not fair to the president, to the nominee, or to the Senate itself.”
The June 1992 floor speech is central to the Republican rationale for rebuffing anyone put forward by President Barack Obama, who announced Wednesday that his choice is Chief Judge Merrick Garland of the D.C. Circuit Court of Appeals.
Tape of those remarks by a 49-year-old Biden has been circulated widely by GOP senators and conservative interest groups. Democratic senators, their liberal advocacy group allies and the White House responded by pointing to footage of a 63-year-old Orrin G. Hatch of Utah, when he the GOP’s Judiciary chairman, touting Garland’s credentials and temperament before 32 Republicans joined 44 Democrats in confirming to the federal appeals bench in 1997.
Garland’s allies are sure to go back to the C-Span video library again in search of the combative opening remarks that Grassley, with an unlined face and a thick head of black hair days before his 54th birthday, offered as Judiciary opened its September 1987 hearing on Robert H. Bork’s nomination to the court.
Those hearings are widely marked as the moment the Senate’s modern-era judicial wars began, but in fact its first battle was effectively over by the time Bork appeared in the ceremonial Russell Building hearing room.
The Democrats had the votes to defeat him, were committed to doing so and were already urging President Ronald Reagan to try again with a less assertively conservative nominee. Grassley rejected talk that a nominee should be denied any opportunity to come to the Hill to make a case for confirmation before sealing his fate.
“One of the Senate's most important functions is that of reviewing the president's nominations to the Supreme Court,” he said at the outset of his speech, but that process has been “demeaned” by Democrats who “have outflanked each other for the honor of taking the most extreme position, even before the first day of the hearings.”
“Such positions are as intemperate as they are premature. It puts the judgment ahead of the inquiry—precisely the kind of closed-mindedness that some accuse this nominee of having. These remarks are mindful of the famous passage from ‘Alice in Wonderland,’ where the Queen of Hearts says to Alice, ‘Sentence first, verdict afterwards!’"
Grassley, then the panel’s third-most-senior Republican, went on to offer a stirring defense of what had been the customary Senate role in considering would-be justices: Assess their backgrounds for competence and likely judicial temperament, but leave all ideological differences at the door.
“The Senate should refuse its consent only when the president's discretion has been abused,” he said. “Giving the Senate the last word, without such deference, would mean the Senate has the only word. This constitutional power the framers did not give to us.
“Of course, in the absence of constitutional power, raw political power can fill the vacuum. I will stipulate right now to the ability of a handful of my colleagues to block this nomination, but I believe it would be the wrong way to approach this serious Senate duty,” he said. “If my colleagues cannot resist the use of bald political power, I would at least hope that they have the courage to shed the fig leaf behind which they hide their real agenda.”
The other side in the great Supreme Court showdown has tried several other avenues for getting Grassley to abandon his current recalcitrance about holding a confirmation hearing -- or at least getting under the chairman’s skin.
His Democratic colleagues recently lined up for a whole afternoon of floor speeches deriding his current position. Two weeks ago the Democratic Party recruited a former Iowa lieutenant governor and state agriculture secretary, with the apt name of Patty Judge, to mount a potentially intense challenge to Grassley’s bid for a seventh term this fall.
The White House leaked that one person being vetted for the Supreme Court opening was a federal appeals court judge from Iowa, Jane Kelly, whom Grassley has enthusiastically praised in the past.
And in the end the chosen nominee has a solid connection to the state’s GOP elite: Garland and Gov. Terry E. Branstad are second cousins, because they have grandparents from Latvia who were siblings.
None of this has seemed to move Grassley. The revival of his own contradictory rhetoric probably won’t, either, but his critics are bound to try.
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