Back in 2014, Bruce Braley, Joni Ernst’s Democratic challenger for Iowa’s open Senate seat, warned fellow trial lawyers about the state’s senior senator, Chuck Grassley, at a fundraiser: If the Republicans win control of the Senate, “you might have a farmer from Iowa who never went to law school, never practiced law, serving as the next chair of the Senate Judiciary.” Well before Ernst’s victory, which would help return the Senate to the GOP, Braley apologized to Grassley for the remark. So should anyone else who underestimated the first non-lawyer to chair the Senate Judiciary Committee.
Grassley has shown himself equal to a succession of challenges leading up to Brett Kavanaugh’s Supreme Court nomination hearings. He took the gavel during one of the most trying periods any Judiciary chairman has ever faced. For years, a liberal school of legal thought permeating academia and the Democratic Party promoted the notion that life-tenured judges should treat the Constitution as a malleable vessel for the imposition of their policy preferences. The election of President Trump proved momentous to the rule of law as a new administration committed itself to the nomination of constitutionalists to the federal bench.
Democrats reacted by surpassing their prior obstructionism of nominees during Republican administrations in order to make it as difficult as possible for President Trump’s picks to be confirmed. They forced the Senate to take far more cloture votes on nominations—no matter how noncontroversial they were—than any prior Congress at the start of a presidency and made the Senate spend an unprecedented number of hours of post-cloture debate time.
They abused the committee’s blue slip tradition, which was designed to encourage consultation with a circuit or district court nominee’s home state senators. Democratic senators instead regularly engaged in an indiscriminate refusal to turn their blue slips in, obviously hoping that that would effectively kill nominations from their home states.
Grassley would have none of this abuse, instead shepherding through nomination after nomination and refusing to permit Democrats to turn the blue slip, contrary to established practice, into a veto.
The results have been nothing short of remarkable: 68 judges confirmed to date, including 26 for circuit courts. The latter figure shatters the record—22 under the first President Bush—for court of appeals confirmations during a president’s first two years, with over four months still to go before President Trump hits the two-year mark.
And Grassley’s Judiciary Committee accomplished all this while facing the challenge of filling two Supreme Court vacancies. A year and a half after the hearings for Neil Gorsuch, the opposition set the bar for antics even lower during Kavanaugh’s hearings last week.
Because their objective was to obstruct the nomination, nothing Chairman Grassley did would have satisfied Democrats, despite his commitment to provide a fair forum for his colleagues. Democrats used that forum to make a spectacle of themselves. Perhaps they underestimated a senator who was sitting on his fifteenth Supreme Court hearing since joining the Judiciary Committee in 1981.
Grassley oversaw the production of over 480,000 pages of documents, surpassing the document productions for the prior five Supreme Court justices combined. Despite that, Democrats concocted a grievance maligning the same process that was observed during the Elena Kagan nomination and demanded millions of pages more from Kavanaugh’s time occupying the White House staff secretary’s office, documents that were irrelevant to predicting judicial performance.
Democrats made their demands through shrill displays from the inception of the hearing. The minority senators interrupted the first day of hearings 63 times before lunch. Their noise was supplemented by the arrests of at least 227 demonstrators throughout the hearings. The remarkable thing is that even amid the cacophony, Sen. Cory Booker acknowledged Grassley’s widely recognized “sense of fairness and decency.” The Democrats’ big mistake: taking advantage of Grassley’s fairness and decency. The chairman’s willingness to let his Democratic colleagues speak had the effect of revealing their own lack of those traits.
Among the many misstatements and empty innuendo Democrats brought into the hearing, Booker’s Spartacus moment on the last day of Kavanaugh’s testimony deserves the blue ribbon. Although it is routine for some sensitive executive branch materials to be accessible only to the Senate as “committee confidential,” Democrats made that designation another grievance. But Grassley deftly accommodated specific requests to release any of those documents. Booker grandiloquently and dishonestly declared in his “I am Spartacus” moment that he had to violate committee rules to release (innocuous, as it turned out) Kavanaugh documents that (as it also turned out) had already been approved. Grassley’s staff had worked into the wee hours of the morning to accommodate Booker’s request.
Grassley’s commitment to transparency rendered the antics of Kavanaugh’s opponents transparent. Long before the hearings, Judiciary Committee Democrats had announced their opposition to the nominee before seeing any documents or asking any questions. The charade that they were seeking deliberation did not end with the kitchen-sink document requests or gotcha questions during the hearing. This week, the Democrats sent Kavanaugh 1,278 written questions, surpassing the total number of such questions submitted to all prior nominees in U.S. history combined.
At yesterday’s Senate Judiciary Committee business meeting, Grassley allowed votes on several additional unsuccessful dilatory motions by Democrats before making clear there would be a vote to report Kavanaugh to the full Senate during the next business meeting on September 20. He sent an unmistakable message: Any attempt at a filibuster during the meeting would not work. The Committee then proceeded to report out 11 lower court nominees to the full Senate, with more to follow next week, even with Kavanaugh on the agenda. That comports with Grassley’s work ethic.
The successful confirmation of constitutionalist judicial nominees foretells a restoration of the courts to the more modest role envisioned by the framers. That will be a victory for the rule of law and representative democracy. And it will have happened under the leadership of the Iowa farmer turned chairman of the Senate Judiciary Committee.