Bench Memos

The Register Misjudges Senator Grassley

This recent editorial in the Des Moines Register is harshly critical of Senator Grassley’s decision to vote against Elena Kagan. The problem is that the Register’s criticism is based on a mischaracterization of Senator Grassley’s actual comments.

They claim that Grassley was motivated almost entirely by a decision to pay back Democrats for their opposition to Republican nominees. In fact, Grassley’s statement before the Judiciary Committee didn’t mention Democratic action on Republican nominees even once.

Rather, the senator spent his lengthy comments detailing substantive problems he has with Kagan’s record, including her lack of experience, her refusal to answer senators’ questions (this despite her having written that nominees to the court should speak more candidly), and past actions that made Grassley worry that Kagan would “allo[w] her politics and personal views to steer her legal thinking and tak[e] an outcome-based approach when analyzing cases.” These actions include her manipulation of the scientific opinion of a medical group to help bolster support for partial-birth abortion, her failure to vigorously defend the Defense of Marriage Act as solicitor general after swearing she would do so during her earlier confirmation, her willingness to look to international law for ideas when interpreting the Constitution, and her narrow view of the Second Amendment.

The Register called Grassley’s statement about the Democrats’ making judicial confirmations into ideological votes a “pathetic” move showing a simple “grudge” against Democrats for blocking Republican nominees like Miguel Estrada. But contrary to the Register’s statement, Grassley’s primary reason for voting against Kagan — indeed, the only reason he cited in his public statement to the committee — was substantive and “on the merits.”

The one time Senator Grassley did discuss the Democrats’ actions was in response to a question at a press conference, and his explanation was not an irrelevant excuse but underlined why his other reasons for voting against Kagan were relevant. Grassley has voted in favor of other liberal nominees in the past, even ones with similar backgrounds, because he was operating on a different standard that accorded more deference to the president. Under his previous standard, he might have discounted many of his current concerns with Elena Kagan (although I think there is a strong case to be made against her judicial temperament, even under a more deferential standard, given her actions as dean of Harvard Law School and her politicization of certain solicitor general decisions). But, according to Grassley, the repeated filibustering of Miguel Estrada was a key turning point in the typical practice of the Senate, one in which, as a body, it moved toward voting based on ideology. He explained that Republicans shouldn’t leave ideology out as long as the Democrats use that as their standard — unilateral disarmament is as doomed a strategy here as anywhere else.

The Register seized on one answer of Senator Grassley’s in order to set him up as a straw man with whom to contrast the “principled” Senator Graham. Graham’s bizarre determination that significant deference to the president is constitutionally required has been ably refuted by Kagan supporter Michael Dorf. Adam White has argued that Graham’s interpretation has it precisely backwards — that, if anything, the Founders intended senators to be a strong counterbalance to the president rather than a mere echo of his own choices. Graham and Grassley’s positions both might be acceptable versions of principles, but there’s nothing in the Constitution to favor a roll-over-and-play-dead approach to advice and consent versus giving judicial nominees scrutiny based on the principles they would use to decide cases. Not only was the Register disingenuous in how it portrayed Senator Grassley, its underlying appeal to principle doesn’t get us any closer to a functional constitutional confirmation system. Instead of the knee-jerk vote against another party’s nominee that they wrongfully accused Grassley of approving, the Register would have knee-jerk support of nominees. Sounds to me like a “pitiful excuse” for voting yes.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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