Grassley on SCOTUS Nomination: Judges should rule according to the law, leave policymaking to Congress

 

Tonight, the President will announce his nominee for Associate Justice of the Supreme Court of the United States to fill the vacancy created by Justice Kennedy’s recent retirement. Justice Kennedy left an important legacy of more than three decades on the Supreme Court. I voted for his confirmation thirty years ago. Justice Kennedy demonstrated his deep commitment to our constitutional liberties. It’s no surprise that some of his greatest opinions defended free speech and religious liberty. I hope Justice Kennedy’s successor carries forward this legacy.

 

I’m optimistic that the person the President nominates tonight will be highly qualified and committed to the rule of law. I’m optimistic because President Trump already appointed one such Supreme Court Justice: Neil Gorsuch.

 

The President’s selection process is the most transparent in history. To my knowledge no other Presidential candidate has ever done that. He issued a list of potential Supreme Court nominees directly to the American people during his 2016 campaign. The list demonstrated the type of judges he would appoint to the bench. And the American people voted for President Trump in part because he promised to nominate these types of jurists.

 

Any of the 25 individuals on the President’s list would be an excellent choice and worthy of the Senate’s serious consideration. But already, we’re seeing from liberal outside groups and some of my Democratic colleagues a desperate attempt to block the nominee—any nominee—by whatever means necessary. Some Democrats have pledged to block anyone from the President’s list without even knowing who the nominee is and regardless of his or her qualifications.

 

Think about that: the President has a list of 25 names, but some Democratic senators have already said that not one of them is acceptable. Zero out of 25 highly respected, highly qualified individuals. Not even worthy of this body’s consideration. That’s incredible.

 

This preemptive attack on a yet-to-be-named nominee is a preview of the obstacles and calls for needless delays we are sure to see from some of my Democratic colleagues. I’ve already heard several weak arguments made in an attempt to delay the confirmation hearing, but the Democratic leaders have shown their hand. Their motive is to block any nominee from the President’s list. Whatever reasons for delay, it’s clear that their single motivating factor is blocking the nominee selected tonight, whoever he or she is.

The first delay tactic I heard was that the Senate shouldn’t confirm a nominee during a midterm election year. But the Senate has never operated like this. Justices Kagan and Breyer were confirmed in midterm election years, in addition to many justices who served before them. Democratic leadership and outside groups are so desperate to block this nominee that they’re willing to try to re-write history to do it.

 

We have a long history of confirming justices nominated during a midterm election year. We don’t have a long history of confirming justices nominated during a presidential election year. It’s been nearly 80 years since we’ve done that. Former Chairman Joe Biden announced in 1992 that the Senate shouldn’t confirm any justice during a presidential election year. Senator Schumer said something similar in 2007, the year before the presidential election. The Biden-Schumer Rule pertains only to presidential election years, not midterm election years.

 

It’s important to let the American people decide who should choose a nominee for a Supreme Court vacancy. That’s why I waited until after the 2016 presidential election to hold hearings for a Supreme Court nominee. But the individual who selects nominees is not on the ballot in the midterm elections. The rule simply doesn’t apply this year.

 

Another losing talking point is that we shouldn’t confirm any nominee while Robert Mueller’s investigation is ongoing. This argument is again inconsistent with historical precedent. President Clinton appointed Justice Breyer while the independent counsel was investigating the President over Whitewater. At the time, his documents were under a grand jury subpoena.

 

What other constitutional powers do the proponents of this argument believe the President should surrender simply because of an investigation? This is obstruction masquerading as silliness.

 

What drives this pre-emptive obstruction? It’s liberal outside groups’ stated fear that the President’s nominee will vote to invalidate the Affordable Care Act or overturn Roe v. Wade.

 

Well, the same five-justice majority that preserved the Affordable Care Act is still on the Court. Justice Kennedy voted to strike it down. Replacing him with a like-minded justice would not change the outcome.

 

And we hear the same thing about Roe v. Wade every time there is a Supreme Court vacancy. Yet it’s still the law.

 

Justices have a way of surprising us. Who could have predicted that Justice Scalia would strike down a ban on flag-burning? It’s a fool’s errand to try to predict how a justice will rule on a hypothetical future case.

 

But this regular uproar about Roe v. Wade shows the difference between how many Democrats and Republicans view the courts. Liberal outside groups and many Democrats have a litmus test. They are results-oriented and focus on the policy outcomes of judicial decisions. They expect—they demand—their judges to rule in favor of their preferred policies. Liberal outside groups and their allies just simply want judges to be politicians hiding under robes. That’s why Senate Democrats were so blatant in changing Senate rules so they could stack the D.C. Circuit. Former Democrat Leader Harry Reid made no bones about making sure there were enough D.C. Circuit judges to protect the Obama Administration’s policies.

 

Republicans, on the other hand, want judges who rule according to the law and leave the policymaking to elected representatives. I don’t want judges who decide cases based on whether the results are liberal or conservative. Judges should rule according to the law, no matter what their views of the policy outcomes are.

 

Justice Gorsuch recently said that judges wear robes, not capes. I agree with that assessment.

 

Liberal outside groups and their allies want judges who will decide cases with liberal policy results. Republicans expect judges who leave their politics aside when deciding a case. That’s the fundamental difference that will become crystal clear to the American people during this confirmation debate.

 

The Senate Judiciary Committee will hold a hearing for the nominee in the coming weeks. I want to emphasize a few things. One, it’s inappropriate for senators to ask the nominee how he or she would rule on certain cases. Two, it’s inappropriate to ask the nominee about his or her personal views of the merits of Supreme Court precedent.

 

The bottom line is senators should not try to extract assurances from nominees on how they will decide particular cases in exchange for a confirmation vote. Justice Ginsburg, during her confirmation hearing, set this standard, promising “no hints, no forecasts, no previews.”

 

She said:

 

“It would be wrong for me to say or to preview to this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.”

 

This standard was reaffirmed by every Supreme Court nominee since then. Justice Kagan said this about Roe v. Wade:

 

“I do not believe it would be appropriate for me to comment on the merits of Roe v. Wade other than to say that it is settled law entitled to precedential weight. The application of Roe to future cases, and even its continued validity, are issues likely to come before the Court in the future.”

 

I expect any nominee to likewise follow the Ginsburg Standard.

 

I’ll ask the nominee how he or she views the law and a judge’s role on the bench. I won’t presume to know how a nominee will rule on any case that might come before the Court. And I certainly won’t be basing my vote on whether I think I’ll agree with the majority of his or her decisions.

 

The press has reported that the President focused on six or seven potential nominees for this vacancy. Each one is well-qualified and would make an outstanding Supreme Court justice. The nominee will get a full and fair hearing. Under my watch, the Senate Judiciary Committee will never be a rubber stamp. Several recent nominees to lower courts learned that the hard way.

 

And the process will be as fair and transparent as I can make it. That has been my approach during my nearly 38 years in the Senate, and I will not change that.

 

The American people must be confident that this Senate has fulfilled its constitutional duty of independently vetting this nominee before we confirm a justice to a lifetime appointment on the highest court in the land. I eagerly await the President’s announcement this evening. And I look forward to hearing from the nominee when he or she appears before the Senate Judiciary Committee.

 

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