Grassley: How We Got Here

We’re continuing to debate the nomination of Judge Neil M. Gorsuch to serve as Associate Justice of the United States Supreme Court.

 

My colleagues on both sides of the aisle have said that this is an important moment for the Senate. I couldn’t agree more.

 

I think it’s important to reflect on why we’re here and how we got here.

 

Before I turn to the Supreme Court and the current debate, let me take a couple minutes to talk about lower court nominees, and provide a little bit of history and context, especially for the benefit of some of the Senators who weren’t here.

 

Let me start by going back to the spring of 2001. President George W. Bush had just been elected President.

 

As we all know, it was a close election, and it was hard fought.

 

The Senate was closely divided, with the Republicans in control.

 

Given how close the Presidential election was, there were elements of the hard left who refused to accept the results of the election.

 

Some blamed Ralph Nader.

 

Others blamed Governor Jeb Bush.

 

And others blamed the Supreme Court.

 

Many on the hard left claimed that President George W. Bush wasn’t a “legitimate” President. Liberal interest groups were egging on the Democratic Leadership to fight the new President at every turn.

 

Sound familiar?

 

At the time, one major concern for the hard left liberal interest groups was that President Bush, whom they claimed wasn’t legitimate, would be able to nominate conservative judges.

 

Again, sound familiar?

 

Senator Cornyn went over some of this yesterday, but it deserves more discussion.

 

So, in the spring of 2001, the hard-left interest groups went to the Senate Democrat Leadership with a plan.

 

According to the New York Times, “42 of the Senate’s 50 Democrats attended a private retreat . . . where a principal topic was forging a unified party strategy to combat the White House on Judicial nominees.”

 

Cass Sunstein, Marcia Greenberger, and Lawrence Tribe spoke at the retreat and pitched to the Democrats their idea.

 

According to one attendee: “They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite.”

 

Well, let’s think about that for a minute. Why do you suppose they believed they needed to “change the ground rules” for confirming judges?

 

It’s because up to that point, you didn’t filibuster judges. You just didn’t.

 

Well, as it happened, less than a month after that caucus retreat, Senator Jeffords from Vermont switched parties and began caucusing with the Democrats.

 

That threw the majority to the Democrats for a short time.

 

But then they lost the election of 2002, and in the spring of 2003, the Republicans were again back in the Majority.

 

Now back in the Minority, Senate Democrats went ahead with the plan to “change the ground rules.”

 

For the first time in history of the Senate, they began to systematically filibuster Circuit Court nominees.

 

Not because they believed the nominees weren’t qualified.

 

They were.

 

Not because they believed those nominees didn’t have the necessary experience. They did.

 

They filibustered those nominees because they believed they were conservative judges.

 

So with respect to appellate court nominees, Senate Democrats – at the behest of the far left – took the unprecedented step of using the filibuster in a systematic way for the first time in Senate history.

 

At the time, there was a lot of debate about changing the rules, dubbed the so-called nuclear option, so that nominees would be afforded an up and down vote, consistent with the Senate’s history and practice.

 

Well, Republicans exercised restraint, and agreed to step back.

 

Then, President Obama became President. Our side didn’t like the use of the filibuster for judges, but we also didn’t think there should be two sets of rules.

 

One for Republican Presidents, and one for Democrat Presidents.

 

We defeated two Circuit Court nominees, one to the 9^th Circuit, and one to the D.C. Circuit. Then President Obama nominated 3 individuals for the D.C. Circuit. Our side denied cloture on these three nominees to the D.C. Circuit.

 

Well, at that point, their side didn’t like playing by the rules that they wrote.

 

So, Majority Leader Reid took another unprecedented step.

 

In November of 2013, he utilized the so-called “nuclear option” to eliminate the very tactic that THEY pioneered.

 

So, that’s how the filibuster was first used on lower court nominees, and later eliminated.

 

Senate Democrats took the unprecedented step to utilize it.

 

And then when it no longer benefited them, they used unprecedented means to eliminate it.

 

So, that brings me back to the Supreme Court.

 

Everyone knows that we had a big debate last year about whether to proceed with the Garland nomination. There were 52 Republicans who believed that we should follow Senate history and tradition and not proceed with that nomination in the middle of a heated election year.

 

And I know it frustrates my colleagues to hear me say it, but the fact of the matter is that in 1992, when then-Senator Biden was Chairman of the Judiciary Committee, he announced that he wouldn’t hold a hearing to fill a vacancy in the last year of President Bush’s term.

 

So, last year, we followed the precedent he described in 1992, for all of the same reasons he discussed.

 

And of course, everybody in this Chamber knows if the shoe were on the other foot, the Democrats would have done the same thing.

 

In fact, President Obama’s former White House Counsel admitted as much. She said she would have recommended the same course of action if the tables were turned.

 

So, now here we are.

 

Just like 2001, we’ve just had a contentious presidential election.

 

It was close. It was hard fought.

 

And, frankly, some on the hard left refuse to accept the results of the election.

 

Once again, left wing groups are egging on the Minority Leader to take another unprecedented step with respect to judicial nominations.

 

Only this time, they want him to lead the first partisan filibuster of a Supreme Court nominee in United States history.

 

And based on the vote we had yesterday, it appears 44 Democrats are prepared to follow the Minority Leader on this fool’s errand.

 

No Supreme Court nomination in our country’s entire history has ever failed because of a partisan filibuster.

 

There is no getting around that fact.

 

Abe Fortas was subjected to a bipartisan filibuster over ethical concerns when President Johnson tried to elevate him to Chief Justice.

 

Justice Thomas was confirmed by a vote of 52-48. I was here for that nomination. A single Senator could have demanded a cloture vote. No one did.

 

Why? Because you don’t filibuster Supreme Court nominations.

 

But today, the Minority is committed to filibustering this fine nominee. The first partisan filibuster in U.S. history.

 

So here we are. The President has nominated an exceptionally qualified judge to take Justice Scalia’s seat. And the Democrats will break new ground again, by conducting a partisan filibuster of that nominee.

 

Republicans aren’t the ones breaking new ground here.

 

As a matter of fact, the Democrat’s own Vice Presidential nominee last year emphatically promised that the Democrats would further change the rules to make sure an expected “President Clinton’s” nominees couldn’t be filibustered.

 

So, at the end of the day, the fact is that if Democrats insist on a filibuster, Republicans will insist on following the practice Senators have followed for more than 200 years.

 

And that practice is this: we don’t conduct partisan filibusters of Supreme Court nominees. And we’re certainly not going to start with this highly qualified nominee.

 

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