Obradovich: Grassley finds new reasons to block Garland
Sen. Chuck Grassley keeps offering new reasons for refusing to give Judge Merrick Garland a hearing and a vote on his appointment to the U.S. Supreme Court.
He may as well keep trying, as the explanations he’s given so far for waiting until after the next presidential election are mostly nonsense:
Let the people decide: The people did decide when they re-elected President Obama in 2012. They didn’t un-elect him in 2014 by sending more Republicans to Washington. They also didn’t rewrite the Constitution, which says the president has the authority to appoint justices.
No empathy, please: Grassley remains incensed that President Obama wants justices who can, if the law is truly unclear, consider the effect on other people. The only type of person who truly lacks empathy is a psychopath. But if that’s what Grassley wants, the way to determine whether a nominee is sufficiently pathological is to hold a hearing and review the record. Any judge who isn’t robotic enough can be voted down.
Biden said so: The weakest argument in politics is, “Well, the other side does it.” Whatever Joe Biden said about court appointments as a senator in 1992 is not a rule any more than any other ridiculous words that come out his mouth. Political tit for tat accomplishes only one thing: Gridlock.
Grassley was right on court hearings — in '92
Senate is co-equal: Now, this is a statement from Grassley that actually holds water. Despite all the ballyhoo about Grassley violating his constitutional duty, he’s right when he says the Senate can choose to withhold its advice and consent. There’s nothing in the Constitution that says the Senate must act on a nomination, and there have been times in history when it has refused to do so.
Some have asserted that the president could proceed with the appointment if the Senate does nothing. A Washington Post op-ed by lawyer and Common Cause board member Gregory Diskant wrote the Senate can waive its right to advise and consent. That could allow Obama to install Garland on the court, pending the inevitable legal challenge.
But others, including George Mason law professor Ilya Somin, say that’s bunk. The Senate’s consent is a prerequisite for appointment, not an obligation, Somin writes in the Washington Post. Despite the karmic appeal of Diskant’s reasoning, it would take a major departure from precedent for justices to adopt it. Wouldn’t it be ironic if a majority of the court rewrote the law to get around fears that a new justice would rewrite the law?
Grassley’s correct that the Senate doesn’t have to do anything, but it’s not a reason why it shouldn’t.
Eight is enough: This is a new one. Grassley’s argument that the court can function with fewer than nine justices is not a reason for refusing to consider an appointment. The law in effect today says the Supreme Court has nine justices. If Grassley wants fewer justices, he needs to write a bill and get it through the Senate and the House and signed by the president. Good luck with that.
“Moderate” is misleading: Another new one. Grassley rolled it out in a speech last weekend to delegates at the GOP’s 4th District convention in Fort Dodge. He said the media described as “moderate” justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor.
“But you know how they all turned out? They turned out that they’re going to make law instead of interpreting law,” he said.
That’s more of a commentary on the media than a reason to refuse confirmation hearings. The hearings are supposed to allow senators to consider a nominee’s record themselves, rather than rely on media labels. The process isn’t foolproof, apparently: Grassley voted in favor of Breyer and Ginsburg. He also voted for Chief Justice John Roberts, who he now says also makes law rather than interpreting it.
It’s also a naked political argument from Grassley, who has been trying to claim his goal is to avoid mixing up the court nomination in election-year politics. Well, nobody really bought that one, anyway. Keep trying, senator.