Sen. Chuck Grassley speaks during a Senate Judiciary Committee meeting. (Screen shot from C-SPAN livestream of hearing)
U.S. Sen. Chuck Grassley of Iowa was the focus of intense scrutiny Monday as he signaled his support for a Republican effort to confirm a nominee for the U.S. Supreme Court before Inauguration Day.
In a written statement issued late in the day Monday, Grassley indicated he will not oppose GOP efforts to confirm a nominee to replace Justice Ruth Bader Ginsburg, arguing that Democrats would do the same if the roles were reversed.
“Over the years, and as recently as July, I’ve consistently said that taking up and evaluating a nominee in 2020 would be a decision for the current chairman of the Judiciary Committee and the Senate majority leader,” Grassley wrote. “Both have confirmed their intentions to move forward, so that’s what will happen. Once the hearings are underway, it’s my responsibility to evaluate the nominee on the merits, just as I always have.
“The Constitution gives the Senate that authority, and the American people’s voices in the most recent election couldn’t be clearer. While there was ambiguity about the American people’s will for the direction of the Supreme Court in 2016 under a divided government, there is no such ambiguity in 2020.”
Grassley went on to say that Democrats in the Senate “made clear long ago their intentions to upend norm after norm to hijack the judiciary. From Bork to Estrada to Kavanaugh; from torching the filibuster to threatening justices who rule against their wishes, Senate Democrats have a long, sordid history of politicizing the courts and the confirmation process … So, make no mistake: if the shoe were on the other foot, Senate Democrats wouldn’t hesitate to use their Constitutional authority and anything else at their disposal to fill this seat.”
Grassley said in July that if a Supreme Court justice died this year, if he were Judiciary Committee chairman he would not hold a hearing on a new nominee because he did not do so in a similar situation in 2016. He is no longer chairman but was four years ago when President Barack Obama unsuccessfully sought the confirmation of Judge Merrick Garland to succeed the late Justice Antonin Scalia.
Had Grassley joined two other GOP senators in opposing a vote on a nominee, it would have left Senate GOP Leader Mitch McConnell with a slim margin to win confirmation. Republicans Susan Collins of Maine and Lisa Murkowski of Alaska have already said the winner of the presidential election should choose the next justice.
McConnell (R-Ky.) pledged Friday to hold a confirmation vote on the Senate floor. He did not specify whether the vote would come before or after the November election.
Among other Republican senators, those backing McConnell included Iowa’s Joni Ernst, Arizona’s Martha McSally, Rob Portman of Ohio, Lamar Alexander and Marsha Blackburn of Tennessee, Ron Johnson of Wisconsin, Thom Tillis of North Carolina, and David Perdue and Kelly Loeffler of Georgia.
On Monday, President Donald Trump announced he was considering five women to fill the seat left vacant by the death of Ginsburg, an icon of the left who was appointed by President Bill Clinton in 1993. Trump said he would “probably” announce his pick on Saturday and said he hopes the vote will take place before the election. Ginsburg, however, according to her granddaughter, said before her death that it was her “most fervent wish” to not be replaced before Inauguration Day.
Nominees to the high court need a simple majority to win confirmation.
Republicans control 53 seats in the Senate. Opposition from Grassley, Collins and Murkowski would leave Trump and McConnell with a maximum possibility of 50 GOP votes if the nominee were to come to the Senate floor before Election Day. That would mean Vice President Mike Pence most likely would cast a tie-breaking vote in favor of the nominee.
Trump and McConnell could lose yet another vote in support of confirmation this year if Arizona’s McSally loses her special election contest against former astronaut Mark Kelly, a Democrat. If Kelly wins, he could take office as early as Nov. 30, giving Democrats a key vote against Trump’s nominee and possibly enough votes to block confirmation.
McSally and at least 21 other Republican senators support a vote on a nominee this year, even though many opposed confirming Garland in 2016, according to a whip count compiled by The Washington Post.
Senate Judiciary Chair Lindsey Graham (R-S.C.) came out in strong opposition to confirming a Supreme Court nominee in an election year in 2016 but changed his tune this year. “I will support President @realDonaldTrump in any effort to move forward,” he tweeted this weekend.
Other GOP senators have not made their views known publicly.
Senate Democrats, on the other hand, are calling on McConnell to postpone the vote until after Inauguration Day. Doing otherwise, they said, would be a raw power grab that would heighten acrimony in the already bitterly divided chamber and escalate pitched partisan warfare.
“And by all rights, by every modicum of decency and honor, Leader McConnell and the Republican Senate majority have no right to fill it. No right,” Senate Minority Leader Chuck Schumer (D-N.Y.) said Monday.
Republicans, however, charge Democrats with hypocrisy, given that many in 2016 said open seats on the high court should be filled in election years but are now arguing they shouldn’t.
Iowa’s Ernst is in a tough reelection battle, and in July said she would back a Supreme Court appointment before a new president is seated even if Trump lost his bid for reelection, according to The Des Moines Register. A freshman who sits on the Judiciary Committee, Ernst took the opposite view in 2016.
In a written statement issued Monday, Ernst said, “Once the president puts forward his nominee for the Supreme Court, I will carry out my duty — as a member of the Senate Judiciary Committee — to evaluate the nominee for our nation’s highest court.”
Sen. Cory Gardner (R-Colo.), who is in a tough re-election race, has not clarified his position, but said in 2016 that the next president should be able to pick a nominee for the Supreme Court. His office did not respond to requests for comment.
North Carolina’s Tillis also backs a vote this year. He announced his position by echoing McConnell’s defense of his reversal. In 2016, control of the Senate and the White House was divided; this year, it’s not, McConnell said in a statement Friday.
“Four years ago, a Supreme Court vacancy arose under divided government and a lame-duck president as Americans were choosing his successor,” Tillis said in a statement Saturday. “Today, however, President Trump is again facing voters at the ballot box and North Carolinians will ultimately render their judgment on his presidency and how he chooses to fill the vacancy.”
Georgia’s Loeffler during a Fox News interview Saturday argued that the Constitution allows Trump to pick a nominee for a Senate vote. “We need to keep that process moving regardless of it being an election year,” she said.
Perdue said Sunday that he would support the president’s nomination, according to the Atlanta Journal-Constitution.
Another vulnerable senator in a tough re-election race, Sen. Doug Jones (D-Ala.), called the decision to nominate a new justice “wrong” and “disturbing.”
“It is unconscionable that Sen. McConnell and the majority leadership position will allow him to go forward and push through a nomination to the United States Supreme Court,” Jones said during a virtual campaign event on Facebook.
In Maine, Collins — also among her party’s most vulnerable members — said in a statement that she wouldn’t object if the Senate Judiciary Committee began the confirmation process but said the chamber shouldn’t vote before Election Day.
“We must act fairly and consistently, no matter which political party is in power,” she said, adding that the decision should be made by the president who is elected this fall.
Tennessee’s Blackburn and Alexander said they would vote for Trump’s nominee.
“I look forward for voting for someone who will be a constructionist constitutionalist and having the opportunity to fill that spot,” Blackburn said during a Fox News interview.
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