Grassley on Judicial Confirmation Successes and Importance of Constitutional Powers of Congress

 

I’m pleased to speak with you all tonight about two things: The President’s and the Senate’s success in reshaping the Judiciary; and the importance of Congress reasserting its constitutional powers.

 

Many of you are in law school or are recent law school graduates. And you’re lucky if the Federalist Society has a presence on your law school campus. Thirty-six years ago, when the Federalist Society was founded, it was about as hard to find conservative legal ideas at a top law school as it is now to find the Senate in session and working on a Friday. Thirty-six years ago, you would have been hard pressed to find a place to honestly debate separation of powers or weigh the virtues of textualism and originalism.

 

We’re still outnumbered, but the Federalist Society has helped turn the tide. Over the last three decades, the Federalist Society has encouraged law students to put its ideas to the test, and it’s made its case effectively to the American public. For too long, liberal judges oftentimes just made up the law based upon their personal policy preferences while ignoring the plain text of the law duly enacted by the people’s representatives in Congress. And now, thirty-six years on, the Federalist Society has proved the power of its ideas and helped steer our judiciary away from this radical and unconstitutional approach to legal interpretation. Judges must apply the law; they don’t get to write it.

 

Now, I’m going to rattle off some facts and figures about our success confirming qualified, conservative judges. What we’ve been accomplishing in the Senate Judiciary Committee and in the Senate as a whole speaks to a much larger issue: what kind of country do we want to be? What I believe, and what I’m sure you believe, is that we are a nation of laws, not of men. An independent judiciary that understands its role as the “least dangerous” branch is critical to sustaining the rule of law and our constitutional Republic. Judges should say what the law is, not what they think it should be.

 

Decades of building this vision by Federalist Society members helped lead to this moment. We have a President appointing textualist and originalist judges and a Republican Senate Majority actively confirming them. The results speak for themselves.

 

Last year, the Senate confirmed Justice Neil Gorsuch to the Supreme Court. He’s proven himself a worthy successor to the late Justice Scalia, one of the greatest justices of all time. To date, we have confirmed 21 circuit-court judges, a record at this point in any President’s first term. At the same point in the Obama Administration, only nine circuit judges were confirmed.

 

We’re confident that this Congress will confirm at least thirty circuit judges by the time we adjourn in December. I’d like to confirm more, if the Senate will actually stay in session and do its work.

 

To put this in perspective, President Obama appointed 55 circuit court judges in eight years. We will confirm more than half that number in just two years.

 

Even so, this hasn’t been easy. Today, Senate Democrats are engaged in unprecedented levels of obstruction. They have required time-wasting cloture votes on 39 nominees—even for those who are eventually confirmed unanimously. To compare, Senate Republicans had required only two cloture votes up to an equivalent point in the Obama Administration. These tactics simply attempt to grind the Senate to a halt.

 

There are currently 49 nominees processed through the Senate Judiciary Committee and pending on the Senate floor, awaiting a confirmation vote by the full Senate. This includes 3 circuit-court, 38 district-court, 2 Article I court, 4 Main Justice, and 2 other Executive Branch nominees. And this number will keep growing, as the Senate Judiciary Committee keeps voting out more nominees to the Senate floor every Thursday that the Senate is in session.

 

I support Senator Lankford’s proposal to reform the Senate rules, so the Senate Democrats cannot continue to abuse the confirmation process in this way. In the meantime, we simply need to outwork the Senate Democrats, to stop their unprecedented obstruction. That’s why I repeatedly urged Leader McConnell to cancel the August recess. I guess he thought it was a good idea, because now we’ll be working for the American people during most of August. The Senate Democrats claim they need more time for floor speeches. Well, their wish has been granted: They now have most of the month of August to talk.

 

We shouldn’t stop at cancelling August recess. The Senate generally starts its sessions late on Monday afternoons and goes back out of session on Thursday afternoons. Kindergarteners – and even preschoolers – have a tougher schedule than U.S. senators.

 

I have repeatedly urged Leader McConnell to end our light workweeks and keep the Senate in session Monday through Friday – and evenings and weekends, as needed – until we complete the job of confirming all these nominees. It’s amazing how many judges we can confirm by merely threatening to make the Senate Democrats work past 2 p.m. on Thursdays.

Our hard work now is critically important to the future of our country. Our success in confirming judges will have a significant impact on the courts. Had Hillary Clinton been elected with a Democratic majority in the Senate, we would be stuck with a liberal majority on the Supreme Court for at least a generation. And it is likely activist judges would have taken over the Fifth, Sixth, and Seventh Circuits. Instead, we’ve confirmed dozens of constitutionalist judges to the federal bench. These judges will influence the direction of the law for a generation. And we have the incredible opportunity to reduce the influence of activist judges on the Ninth Circuit for the first time in years. Maybe after we’re done, they won’t get reversed so much.

 

Now that I’ve covered our success in the courts, I want to talk to you about something else just as important: Congress’s role in checking the power of the administrative state. To deal with the size of our country and the complexities of the modern world, Congress has had to delegate some of its powers to federal agencies. It’s a compromise made in the name of efficiency. The government has a big job to do, and we’ve only got a few hundred legislators and a limited amount of time to do it. But it’s a compromise fraught with peril.

 

When the compromise works well, we get a government that is responsive to the evolving needs of our country. When it doesn’t, we get agencies that regulate every aspect of our lives with unchecked power and without real input from the American people. Bureaucrats don’t have to win elections to keep their jobs. So the American people cannot hold them directly responsible for their actions.

 

The courts have not been helpful here, deferring to the agency bureaucrats’ interpretations of statutes when they’re challenged in court. What that means is executive agencies obtain executive, legislative, and judicial functions—all wrapped up into one. They make regulations, interpret them, and enforce them. Which brings to mind Madison’s famous caution in Federalist No. 47 that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”

 

Fortunately, Madison, having identified the problem, also points us to the solution: a tripartite form of government in which ambition counteracts ambition. And here is where the Federalist Society has ridden in again to help save the day.

 

I hope all of you are by now familiar with the Federalist Society’s excellent Article One Initiative. This project is dedicated to helping Congress assert its traditional Constitutional prerogatives and checks against the other branches. It proposes reining in Chevron deference, and aggressive and strategic use of Congress’s legislative, taxing, and spending powers.

 

But even the Article One Initiative doesn’t pay enough attention, in my view, to one of Congress’s most important powers: the power of oversight.

 

If Congress is going to delegate some of its power to executive agencies, it has a duty to the American people to closely monitor what the agencies do with that power.

It is through rigorous Congressional oversight that we can make the agencies accountable to the American people. Rigorous oversight is the basis for good laws and efficient use of American tax dollars. It also helps prevent government fraud, waste, and abuse. It is a key part of keeping the administrative state in check.

Oversight responsibility belongs not just to committee chairmen and ranking members. It belongs to each individual member of Congress. It also belongs to government and corporate employees who become aware of unlawful conduct, or waste fraud and abuse, which is why I have worked hard to pass legislation protecting whistleblowers. They must be protected so their voices can be heard.

 

I encourage you and the rest of the Federalist Society to push for more congressional oversight in our constitutional system.

 

Many of you will be leaders in one of our branches of government. If you work in the executive branch, I encourage you to respond to oversight letters promptly, even if it comes from the other side of the aisle. If you work in the judicial branch, I encourage you to defer to congressional intent – as evidenced by the plain text and original public meaning of the law – when interpreting statutes and to support Congress’s oversight efforts. And if you work in the legislative branch, I encourage you to wield your oversight power like a sword to cut away waste, fraud, and abuse and to bend the bureaucratic will to the people.

 

Thank you very much for inviting me to come speak today. I’m happy to answer your questions.

 

-30-