Grassley’s convenient hypocrisy

Sen. Charles Grassley (R-Iowa), chair of the Judiciary Committee, should stop voting immediately since he is up for reelection this year, at least until voters know whether or not the senator will be reelected. If this sounds ludicrous, it’s because it is. But this is precisely the flawed logic of Grassley, Senate Majority Leader Mitch McConnell (R-Ky.), and at least 33 of their Senate colleagues. These senators argue that, since it’s a presidential election year, President Obama should not fulfill his duty of nominating the next Supreme Court justice and that we should instead wait for the next president to nominate this justice.

The Constitution is clear: the president has a constitutional responsibility to make a nomination whenever a vacancy occurs, and the Senate has a corresponding responsibility to give that nominee good faith consideration. These responsibilities do not go away in an election year.

And yet by denying a fair hearing and a vote, these senators are obstructing the processes put forth in our constitution. Obama has made clear his intention to nominate Justice Scalia’s successor. Now, it’s time for Grassley and his colleagues to do their job as described in the Constitution by giving “advice and consent” to the president’s nominee. 

Americans not only deserve a full Supreme Court; they also want the Court’s empty seat filled. In fact, 62 percent of Americans are in favor of Obama and the Senate acting now to fill the vacant seat on the Court, according to a recent Fox News poll. Iowans have also been speaking out for Grassley to do his job.

The last 12 Supreme Court justices added to the bench were nominated, had a hearing in the Senate Judiciary Committee, and were confirmed by the Senate in less than 125 days. The average time from nomination to confirmation is 67 days. There are more than 300 days left in the current terms of Obama and Grassley, leaving more than enough time for both to do the jobs that the Constitution requires them to do.

Grassley argues that Obama should wait just because it’s a presidential election year. But Grassley ignores the fact that he voted in favor of Justice Anthony Kennedy in 1988, a presidential election year. And in 2008—another presidential election year—Grassley went on the record stating, “The reality is the Senate has never stopped confirming judicial nominees during the last few months of the President’s term.” 

It’s clear that the 1988 and 2008 versions of Grassley would disagree with the 2016 version. It’s also clear that Grassley’s threatened obstruction is part of a pattern of refusing to bring Obama’s judicial nominees to the Senate floor for an up-or-down vote. There were only 11 federal judges confirmed last year, the lowest number in half a century. This has led to 89 total vacancies on our federal courts.

The obstruction pursued by Grassley and McConnell amount to an assault on the Constitution written by our founders. As a result, we are left to wonder how long the Supreme Court will languish with eight justices and the possibility of 4-4 decisions. A tied vote by the Court does not establish precedent for future decisions, meaning that the lower court’s ruling stands. In turn, this means that if the lower courts disagree over how to interpret the Constitution, the scope of Americans’ constitutional rights would vary, depending on where they live.

Further, if this obstruction continues and the vacancy created by Justice Antonin Scalia’s death stretches on for a historic length, it will set a dangerous precedent for future administrations. More Americans will be denied their day in court and will not receive the justice they deserve.

Obama has announced his intention to nominate a successor to Justice Scalia. When he does, Grassley should do his job and live up to his constitutional responsibility to consider the nominee. He doesn’t have to support the president’s nominee; but he is constitutionally obligated to, at minimum, consider the president’s nominee by holding a hearing. If Grassley insists on keeping the seat vacant until people have had their voices heard in November, we can assume he intends on abstaining from voting until after Iowans cast their ballots as well. 

Singh is the campaign manager for Legal Progress at the Center for American Progress and Sinovic is the executive director of Progress Iowa.