The death of Supreme Court Justice Antonin Scalia has put a spotlight on Iowa’s senior Senator Chuck Grassley, who chairs the Senate Judiciary Committee. After wavering last week on whether he would be willing to hold hearings on President Barack Obama’s choice to replace Scalia, on Tuesday Grassley joined all other Republicans on the committee to vow that no Supreme Court nominee will get any consideration this year. Not only that, Senate Republican leaders will refuse to meet with the nominee. Grassley is open to discussing the Supreme Court vacancy with the president, but only as an “opportunity to explain the position of the majority to allow the American people to decide.”

Grassley’s hypocrisy is evident when you compare his recent statements with what he said in 2008 about the Senate’s role in confirming judicial nominees, even in the final year of a president’s term. His refusal to do one of the key tasks of the Judiciary Committee may also undercut what has been the central slogan of the senator’s re-election campaigns: “Grassley works for us.”

UPDATE: Former Lieutenant Governor Patty Judge is thinking about jumping in to the U.S. Senate race, because of Grassley’s “double-speak” and “deliberate obstruction of the process.” My first thoughts on a possible Judge candidacy are here. I’ve also enclosed Grassley’s response to Senate Minority Leader Harry Reid at the end of this post.

First, let’s be clear: no principle lies behind Grassley’s current stance. The Des Moines Register’s Jason Noble recalled what Grassley said about the matter during the last Republican presidency:

Grassley, R-Iowa, was one of several Republicans at a July 14, 2008, forum who argued against delays in the consideration and confirmation of then-President George W. Bush’s judicial nominees by the Senate’s then-Democratic majority.

“The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term,” Grassley said at one point in the proceedings.

He also referred to the so-called “Thurmond Rule” — it’s an informal and uncodified rule in the Senate against consideration of judicial nominees late in a president’s term — as “plain bunk.”

Nor is there any precedent for the Senate blocking a president’s Supreme Court nominee, solely because the vacancy came up in an election year. After reviewing a century of Supreme Court nominations, the SCOTUSblog’s Amy Howe concluded,

The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.

Click through for the examples Howe found. She also noted, “In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year. But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.” In both cases, the justices who were planning to retire stayed on the bench until their successors had been confirmed.

By ruling out any possible confirmation of a successor to Scalia, Senate Republicans have guaranteed that the high court will have a vacancy for well over a year, given how long it will take the new Senate to consider the person the next president nominates. That’s way outside the normal time frame for approving a Supreme Court justice, according to this chart from a Congressional Research Service report by Barry J. McMillion, “Supreme Court Appointment Process: Senate Debate and Confirmation Vote.”

Former Supreme Court Justice Sandra Day O’Connor (a Ronald Reagan appointee) has said the Senate should act on President Obama’s forthcoming nominee: “it’s an important position,” and “I think we need somebody there now to do the job, and let’s get on with it.”

Similarly, two former longtime GOP senators have spoken out against the plan to obstruct any nominee:

“I can understand their reluctance given the controversy that surrounds all of the debate that has already occurred,” Mr. [Richard] Lugar said. “But that is not sufficient reason to forgo your duty.”

His view was shared by Olympia J. Snowe, a former moderate Republican senator from Maine. “I believe that the process should go forward and be given a good-faith effort — and ultimately people will come to their own decision on a vote on a nominee,” she said in a statement.

Grassley’s answer to critics is that the Senate has the authority to withhold consent from any presidential nominee. Here’s the form letter his office has sent to many Iowans who have urged him not to leave the high court seat vacant:

Thank you for taking the time to contact me. As your Senator, it is important for me to hear from you.

I appreciate being made aware of your concerns in light of the recent loss of Supreme Court Justice Antonin Scalia. Justice Scalia was an intellectual giant, whose originalist interpretation of the Constitution set the standard for the Court. His unwavering dedication to our Constitution, as well as his quick wit, will be remembered for years to come.

Iowans, together with all Americans, are engaged in a national discussion about replacing Justice Scalia on the Supreme Court. That’s how it should be. As I’ve often said, representative government is a two way street. This dialogue is especially important on an issue as important as the direction our highest court will take for a generation.

The U.S. Constitution gives the President the authority, but not the obligation, to nominate a successor to Justice Scalia, just as it gives the Senate the authority to consent or withhold consent to the confirmation of such a nominee. Given the timing of Justice Scalia’s death and the particular circumstances of this vacancy, including the fact that the constitutionality of several of the Obama Administration’s actions designed to circumvent Congress are currently under consideration by the courts, it is appropriate to defer the decision to the American people who will soon elect a new president and have the next president select the next Supreme Court Justice.

Thank you again for sharing your views with me. By doing so, you allow me to better represent you in the U.S. Senate. Please continue to keep in touch.

This week’s letter from Senate Judiciary Committee Republicans likewise frames the issue as a matter of principle. I’ve enclosed the full text at the end of this post. Excerpt from Grassley’s February 23 press release:

Senate Judiciary Committee Republicans today sent a letter to Majority Leader Mitch McConnell indicating that they will exercise their constitutional authority to withhold consent of a Supreme Court nomination and will not hold hearings on a Supreme Court nominee until the next President is sworn in.

The letter, signed by all Judiciary Committee Republicans, says, “Accordingly, given the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy. Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.”

Committee members wrote that they wanted, “to ensure the American people are not deprived of the opportunity to engage in a full and robust debate over the type of jurist they wish to decide some of the most critical issues of our time.” Concerns have been raised about the President already indicating that he has no intention of nominating somebody in the mold of Justice Scalia. Regardless, it is principle over the person that matters most.

The Senate clearly has the authority to reject any presidential nominee. But it’s a stretch to say senators are performing the tasks assigned to them when they refuse even to consider anyone, no matter how qualified. Meet the nominee, vet the nominee, hold hearings, and have the guts to vote yes or no.

Democrats all over the country are calling on GOP senators to “do your job.” Talking Points Memo’s Josh Marshall gamed out how this issue could play in this year’s Senate elections. Excerpt:

Republican senators won’t meet with the nominee. We get it. But I’m pretty sure Democratic senators will meet with him or her and make quite a show of it. I’m also fairly sure the White House will keep trying to set up meetings with Republican Senators and make a show of the on-going refusals. Senate challengers will press it in their campaigns too. And I have little doubt the White House will be sure to arrange meetings with the couple Republican senators who’ve so far bucked the unified front.

As I noted earlier, the necessity of the “three nos” is tied to a very evident slippery slope Republicans are desperately trying to avoid. If you meet with a nominee and then get asked how it went, what do you say? “It was a good meeting, a very qualified individual. But we definitely won’t hold a confirmation hearing?” That doesn’t make sense. The whole thing doesn’t make a lot of sense. But that’s okay if you put the whole story to bed in February or March. There’s a big difference between just announcing it and getting past it and having a death of a thousand messaging cuts over the course of an election year. As the people managing the opposition on the Republican side have made clear, they need to do everything they can to avoid any discussion which focuses on the qualifications of the nominee – an amazingly cynical statement but accurate in terms of strategy.

As I said, partisans on both sides are immovable on this. And loosely affiliated or swing voters, by definition, aren’t terribly knowledgeable or concerned about the differences over judicial philosophy which undergird this fight. But these voters are extremely focused on gridlock, doing your job or not doing your job, people who refuse to do their job or just do what makes sense for seemingly arbitrary reasons. What is more, there’s no ideological commitment required in this case. The issue is readily understandable. This is your job. Do your job. Especially if you’re asking to be hired again!

Again, this is exactly what tends to drive the votes of people who aren’t tightly aligned with one party or ideology. Their biggest, consistent frustration – especially this year – is the inability of government to get things done. In other words, it’s not that the Court or its decisions on particular cases is so important to these people. But the battle captures an aspect of governmental dysfunction, the arbitrariness of the breakdown of governance that matters a great deal to precisely these people.

No wonder Senator Ron Johnson of Wisconsin, one of the most endangered Republicans up for re-election in 2016, has suggested he would be willing to vote on a Supreme Court nominee this year. The obstruction could cause problems for other GOP senators who represent blue states.

Yesterday Senate Minority Leader Harry Reid lit into Grassley and others for the “historically unprecedented” obstruction that, in his view, dishonors the legacy of the Senate Judiciary Committee. Click through to watch the video of Reid’s ten-minute speech. Excerpts:

“This is historically unbelievably, historically unprecedented. [They] won’t give the confirmation process even a start, why? Because the person is being nominated by President Obama. Remember, the Republican leader said many years ago that the number one goal he had was to make sure President Obama was not reelected. That failed miserably, President won by 5 million votes. Everything has been done by the Republican members of the Senate to embarrass, obstruct, filibuster, anything that can be done to focus attention on President Obama, none of which has helped the country. Senator Grassley has surrendered every pretense of independence. [He has] let the Republican leaders annex into a narrow partisan mission of obstruction and gridlock.”

Reid asked of Grassley, “Is this the legacy that he wants? Is this how he wants his committee work remembered? As a chairman who refused his duty, and instead allowed the Republican leader to ride roughshod over the judicial committee’s storied history?” The Senate historian’s office has confirmed that there is no precedent for denying a Supreme Court nominee a hearing, Reid noted. He also read from various Iowa newspaper editorials that called on Grassley to consider a nominee to replace Scalia.

Speaking to Iowa reporters by phone yesterday, Grassley indicated he’s not worried about his legacy:

“Consent can be done two or three different ways. It can be withholding consent, it could be giving consent, it could be not doing anything,” Grassley said. “That’s our constitutional role and all of those are possible.” […]

“I’m elected as a United States senator ‘til January the third next year and I’ve got to do what I think is right and let the chips fall where they may,” he said, denying that political considerations have influenced the GOP position. […]

When asked about [Democratic Senate Minority Leader Harry] Reid’s comments, Grassley scoffed at the idea that his legacy was a factor in his decisions.

“Do you think I spend my day wondering about how Chuck Grassley will go down in history?” Grassley asked reporters. “I don’t care if I ever go down in history. I’m here to do a job and how the history books treat me — my name will probably never be mentioned in the history books.”

State Senator Rob Hogg, one of the Democrats running against Grassley, told the Des Moines Register that the obstruction of a Supreme Court nominee is a “game-changer” for the U.S. Senate race in Iowa:

“This makes us one of the most competitive races in the country,” Hogg said. “The vast majority of Iowans want the Senate to do its job, they want Congress to work and this is just more obstruction. It is Example A of a Congress that is no longer functioning.”

Given Grassley’s historically high approval ratings, Democrats have a long way to go to make the Senate race competitive. But the refrain of “Just do your job” could dent Grassley’s standing among Iowans, especially if he rolls out the kind of television ads he ran in 2010, depicting himself as working hard for his constituents. If “Grassley works for us,” why won’t he at least hold hearings on a Supreme Court nominee? He and other Republicans can always vote no later.

Incidentally, two television commercials about Grassley and the Supreme Court vacancy are on the air in some Iowa markets this week. Former Justice O’Connor’s comments are featured in a spot the non-partisan group Justice Not Politics is running in Des Moines and Cedar Rapids.

The conservative group Judicial Crisis Network is running a tv ad thanking Grassley for “letting the people decide” (that is, putting off any consideration of a Supreme Court nominee until after the presidential election).

Nearly identical ads are running six other states where GOP senators are up for re-election this year.

Any comments about the Supreme Court vacancy or this year’s U.S. Senate races are welcome in this thread.

P.S.- Judge Jane Kelly of the Eighth Circuit Court of Appeals is a leading contender for the Supreme Court nomination. Grant Rodgers profiled Kelly for the Sunday Des Moines Register on February 21.

Kelly, who was confirmed unanimously by the Senate in 2013 for the appeals court, declined to be interviewed for this article. But in a conversation with former U.S. Sen. Tom Harkin after Scalia’s death, she signaled a willingness to take on what is expected to be a grueling confirmation battle if picked by the president, Harkin told the Register.

The Iowa Democrat recommended Kelly to Obama for the 8th Circuit — it hears cases from Iowa, North Dakota, South Dakota, Minnesota, Nebraska, Missouri and Arkansas — before his retirement from the Senate last year.

“I wanted to check with her to find out if she was open to this process or not,” Harkin said in a phone interview. “If she wasn’t, I wasn’t going to try to push something. She said, well, ‘Yeah.’ She’d be open to it.”

“What’s that old saying?” he continued. “This girl’s got grit.”

Senator Chuck Grassley’s February 23 press release:

Judiciary Committee Republicans to McConnell: No Hearings on Supreme Court Nomination

WASHINGTON – Senate Judiciary Committee Republicans today sent a letter to Majority Leader Mitch McConnell indicating that they will exercise their constitutional authority to withhold consent of a Supreme Court nomination and will not hold hearings on a Supreme Court nominee until the next President is sworn in.

The letter, signed by all Judiciary Committee Republicans, says, “Accordingly, given the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy. Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.”

Committee members wrote that they wanted, “to ensure the American people are not deprived of the opportunity to engage in a full and robust debate over the type of jurist they wish to decide some of the most critical issues of our time.” Concerns have been raised about the President already indicating that he has no intention of nominating somebody in the mold of Justice Scalia. Regardless, it is principle over the person that matters most.

As former Judiciary Committee Chairman and current Vice-President Joe Biden said in a speech given on the Senate floor, “It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” And as he said, it does not matter, “How good a person is nominated by the President.”

A copy of the text of the letter is below, and can be found here.

Dear Majority Leader McConnell,

As we write, we are in the midst of a great national debate over the course our country will take in the coming years. The Presidential election is well underway. Americans have already begun to cast their votes. As we mourn the tragic loss of Justice Antonin Scalia, and celebrate his life’s work, the American people are presented with an exceedingly rare opportunity to decide, in a very real and concrete way, the direction the Court will take over the next generation. We believe The People should have this opportunity.

Over the last few days, much has been written about the constitutional power to fill Supreme Court vacancies, a great deal of it inaccurate. Article II, Section 2 of the Constitution is clear. The President may nominate judges of the Supreme Court. But the power to grant, or withhold, consent to such nominees rests exclusively with the United States Senate. This is not a difficult or novel constitutional question. As Minority Leader Harry Reid observed in 2005, “The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give the Presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.”

We intend to exercise the constitutional power granted the Senate under Article II, Section 2 to ensure the American people are not deprived of the opportunity to engage in a full and robust debate over the type of jurist they wish to decide some of the most critical issues of our time. Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now.

Accordingly, given the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy. Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.

Sincerely,
Chuck Grassley
Orrin Hatch
Jeff Sessions
Lindsey Graham
John Cornyn
Mike Lee
Ted Cruz
Jeff Flake
David Vitter
David Perdue
Thom Tillis

UPDATE:

Prepared Floor Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
“Biden Malarkey”
Thursday, February 25, 2016

Mr. President, yesterday the minority leader came to the floor to disparage the work of the Senate Judiciary Committee, and the Senate as a whole.

And of course, as he does from time to time, he launched into a personal attack against me.

That’s ok. I don’t intend to return the favor.

I don’t want to talk about the nuclear option and the tremendous damage it did to the Senate.

Or, the years and years that Democrat senators had to endure under his leadership, without even being able to offer any amendments.

We all know that’s just how some people act when they don’t get their way.

But childish tantrums aren’t appropriate for the Senate.

I think if my friend Senator Biden had been in the Chamber yesterday, he would have said: ‘that’s a bunch of malarkey.’

I didn’t come to the floor to talk about the minority leader. I did, however, want to follow up on my remarks from earlier this week on the Biden Rules.

Now, in fairness, Senator Biden didn’t just make these rules up out of thin air.

His speech went into great historical detail on the history and practice of vacancies in presidential election years. He discussed how the Senate has handled these vacancies, and how presidents have – and should – handle them.

Based on that history, and a dose of good sense, Senator Biden laid out the rules that govern Supreme Court vacancies arising during a presidential election year. And of course, he delivered his remarks when we had divided government, as we have today.

Now, the Biden Rules are pretty clear. My friend from Delaware did a wonderful job laying out the history, and providing many of the sound reasons for the Biden Rules.

And they boil down to two fundamental points.

First, the President should exercise restraint, and “not name a nominee until after the November election is completed.” As I said on Monday, President Lincoln is a good role model for this practice.

Or, stated differently: The President should let The People decide.

But if the President chooses not to follow President Lincoln’s model, but instead, as Chairman Biden said, “goes the way of Fillmore and Johnson and presses an election-year nomination.”

Then, the Senate shouldn’t consider the nomination, and shouldn’t hold hearings. It doesn’t matter “how good a person is nominated by the President.”

Or, stated plainly: It’s the principle, not the person that matters.

Now, as I said on Monday, Vice President Biden is an honorable man and he is loyal. Those of us who know him well, know this to be true.

So, I wasn’t surprised on Monday evening when he released a short statement defending his remarks, and of course defending the President’s decision to press forward with a nominee.

Like I predicted on Monday, Vice President Biden is a loyal Number Two.

But the Vice President had the difficult task of explaining, today, why all of the arguments he made so cogently in 1992, aren’t really his view.

It was a tough sell. And Vice President Biden did his best.

But I must say, I think CHAIRMAN Biden would view VICE PRESIDENT Biden’s comments the same way he’d view the Minority Leader’s comments yesterday:

He’d call it like he sees it: He’d call it “a bunch of malarkey.”

Here’s part of what Vice President Biden said on Monday:

“Some critics say that one excerpt of a speech is evidence that I do not support filling a Supreme Court vacancy during an election year. That is not an accurate description of my views on the subject. In the same speech critics are pointing to today, I urged the Senate and the White House to overcome partisan differences and work together to ensure the Court functions as the Founding Fathers intended.”

Well, Mr. President, that doesn’t sound consistent with all of those Biden Rules I shared with my colleagues on Monday.

So we ask: Is it possible to square Chairman Biden’s 1992 election year statement with Vice President Biden’s 2016 election year statement?

Was Chairman Biden’s 1992 statement really just all about greater cooperation between the Senate and the White House?

When Chairman Biden said, in 1992, that if a vacancy suddenly arises, “action on a Supreme Court nomination must be put off until after the election campaign is over,” was he simply calling for more cooperation?

When he called for withholding consent, “no matter how good a person is nominated by the President,” was he merely suggesting that the President and Senate work together a little bit more?

When he said we shouldn’t hold hearings under these circumstances, was that all about cooperation between the branches?

Well, since we’re talking about filling Justice Scalia’s seat, it seems appropriate to ask: How would he solve this puzzle?

I suppose he’d start with the text. So, let’s begin there.

In 1992, did Chairman Biden discuss cooperation between the branches?

Yes, in fact he did.

So far, so good, for Vice President Biden.

But that can’t be the end of the matter, because that doesn’t explain the two vastly different interpretations of the same statement.

Let’s look a little more closely at the text.

Here’s what Chairman Biden said about cooperation between the branches:

“Let me start with the nomination process and how the process might be changed in the next administration, whether it is a Democrat or Republican.”

Well, Mr. President, we didn’t have to search very long to unearth textual evidence regarding the meaning of Chairman Biden’s words in 1992.

Yes, he shared some thoughts about how he believed the President and Senate might work together. But that cooperation was to occur “in the next administration.”

In other words AFTER the presidential election of 1992.

AFTER the Senate withheld consent on any nominee “no matter how good a person is nominated by the President.”

So the text is clear.

But if you need more evidence that this is an accurate understanding of what the Biden Rules mean, look no further than a lengthy Washington Post article published one week prior. In that interview, he made his views quite clear.

He said,

“If someone steps down, I would highly recommend the president not name someone, not send a name up.”

And what if the President does send someone up?

“If [the President] did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.”

Specifically, my friend Chairman Biden said, “Can you imagine dropping a nominee, after the three or four or five decisions that are about to made by the Supreme Court, into that fight, into that cauldron in the middle of a presidential year?”

Chairman Biden went on. “I believe there would be no bounds of propriety that would be honored by either side. . . . The environment within which such a hearing would be held would be so supercharged and so prone to be able to be distorted.”

At the end of the day, Mr. President, the text of Chairman Biden’s 1992 statement is clear.

In 2016, when he’s serving as a loyal Number Two to this President, Vice President Biden is forced to argue that the Biden Rules secretly mean the exact opposite of what they say.

Ironically, that’s a trick Justice Scalia taught us all to recognize, and reject, on sight.

We know we should look to the clear meaning of his text, as Justice Scalia taught us.

This was not a one-off comment by Senator Biden.

It was a 20,000-word floor speech laying out, forcefully, a difficult and principled decision. It relied on historical precedent, respect for democracy, and respect for the integrity of the nomination process.

There is no doubt what he meant.

Mr. President, there is of course a broader point here.

Words have meaning.

Text matters.

Justice Scalia devoted his adult life to these first principles.

Do the American people want to elect a President who will nominate a Justice in the mold of Scalia, to replace him?

Or do they want to elect President Clinton or Sanders, who will nominate a Justice who will move the court in a drastically more liberal direction?

Do they want a Justice who will look to constitutional text when drilling down on the most difficult constitutional questions?

Or, do they want yet another Justice who, on those really tough cases, bases decisions on “what is in the judge’s heart” as then-Senator Obama famously said.

It comes down to this.

We’ve lost one of our great jurists.

It’s up to the American people to decide whether we preserve his legacy.

This is a debate we should have.

This is a debate the American people should have.

And then we should let the American people decide.