July 09, 2018
Grassley on SCOTUS Nomination: Judges should rule according to the law, leave policymaking to Congress
Statement by Senator Chuck Grassley of Iowa
Senate Judiciary Committee
President’s Forthcoming Supreme Court Nomination
July 9, 2018
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
we hear the same thing about Roe v. Wade every time there is a Supreme
Court vacancy. Yet it’s still the law.
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.
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.
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.
Gorsuch recently said that judges wear robes, not capes. I agree with that
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.
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.
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.”
“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.”
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.”
expect any nominee to likewise follow the Ginsburg Standard.
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.
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.
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.
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.