Grassley: You can’t use the Senate rules as both a shield and a sword.

Mr. President, we’re now well on our way to confirming Judge Gorsuch as the next Justice of the Supreme Court. Now, I have a few things to say about the way we’ve gotten here.

 

Earlier today, the other side made an unprecedented break with Senate history and tradition. They launched the first partisan filibuster of a Supreme Court nominee in our nation’s history.

 

For our part, Republicans insisted that we follow the practice of the Senate. We don’t engage in partisan filibusters of Supreme Court nominees.

 

Yesterday I came to the floor to speak about the path that brought us here. As I discussed, in 2001, the current Minority Leader and some of his allies on the far left hatched a plan to “change the ground rules” with regard to lower court nominees. I noted a New York Times article describing the Democrat Senatorial Caucus retreat where the new approach to nominees was discussed.

 

After a brief time in the Majority, Senate Democrats were back in the Minority in 2003. It was at that time that Senate Democrats began unprecedented and systematic filibusters of President Bush’s circuit court nominees.

 

Then, the tables turned. President Obama was elected and Republicans held the Senate Minority.

 

At that time, even though many of us didn’t like the idea of using the filibuster on judicial nominees, we also recognized that we couldn’t have two sets of rules—one for Republican Presidents and one for Democrat Presidents. Our party defeated two nominees by filibuster and denied cloture to three of President Obama’s nominees to the D.C. Circuit Court of Appeals.

 

But the other side didn’t appreciate being subjected to the rules they first established in 2003.

 

So at that point, in 2013, they decided to change the rules of the Senate.

 

Now, at the time, as we all know, Majority Leader Reid changed the rules for all cabinet nominations and lower court nominees.

 

To say that my colleagues and I were disappointed is a gross understatement.

 

The Majority CLAIMED that they left intact the filibuster for Supreme Court nominees.

 

But, my view back in 2013, was that the distinction Majority Leader Reid drew between lower court nominees and the Supreme Court wasn’t a meaningful one.

 

My view in 2013 was that Majority Leader Reid had effectively eliminated the filibuster for both lower court nominees AND the Supreme Court.

 

And here’s the reason. There are two circumstances where this issue might conceivably arise. Either you have a Democrat in the White House and a Democrat controlled Senate. Or, where you’d have a Republican in the White House and a Republican led Senate.

 

In the first, there’s a Democrat in the White House, and the party led by Leader Reid and Leader-in-waiting Schumer was in the Majority. And if, for some extraordinary reason, Senate Republicans chose to filibuster the nominee, there’s no question that a Majority Leader Reid or a Majority Leader Schumer would change the rules.

 

Now, I don’t believe this particular circumstance would ever arise, because our side simply doesn’t believe in filibustering Supreme Court nominees. I’ve never voted to filibuster a Supreme Court nominee. Not once. And I think I have a pretty good sense of the rest of our caucus. Our side just doesn’t believe in it. It’s not much more complicated than that.

 

And of course, even if for some extraordinary reason, our side did choose to filibuster a Supreme Court nominee, we don’t have to speculate as to whether the other side would’ve changed the precedent with respect to the Supreme Court. Last year, when everyone thought Secretary Clinton was going to win the election, their Vice Presidential candidate said they would.

 

Then of course the other circumstance where this issue would arise is what we have today. A Republican in the White House, and a Republican controlled Senate. And we saw today, the Minority was willing to take that last step and engage in the first partisan filibuster in United States history. And as I’ve repeatedly discussed, because they were willing to do it with a nominee as well-qualified as Judge Gorsuch, it proved without a shadow of a doubt that they’d filibuster anyone submitted by this President.

 

That’s why, on the day Majority Leader Reid took that unprecedented action in 2013, I spoke on the Floor and concluded my remarks this way:

 

“So, the Majority has chosen to take us down this path, the silver lining is that there will come a day when the roles are reversed. When that happens, our side will likely nominate and confirm lower court and Supreme Court nominees with 51 votes, regardless of whether the Democrats actually buy into this fanciful notion that they can demolish the filibuster on lower court nominees and still preserve it for Supreme Court nominees.”

 

So, though I’m extremely pleased that we’ll confirm such an exceptional nominee to the Supreme Court in the next day or so, I’m disappointed with what we were forced to do to get it done. But sadly, I can’t say I’m surprised. I knew when Majority Leader Reid did it in 2013 that this is where we were headed.

 

But the bottom line is that you can’t have two sets of rules.

 

You can’t clothe yourself in the “tradition” of the filibuster, while simultaneously conducting the first partisan filibuster of a Supreme Court nominee in history.

 

You can’t demand a rules change only when it suits you.

 

You just can’t have it both ways.

 

You can’t use the Senate rules as both a shield and a sword.

 

But I must say, the one thing that doesn’t disappoint me is this.

 

The nominee to take Justice Scalia’s seat is eminently qualified. He will apply the law faithfully, without respect to persons.

 

He’s a judge’s judge.

 

And come some time tomorrow, we’ll all start calling him Justice Gorsuch.

 

 

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