Those include Jane L. Kelly, a judge on the 8th Circuit Court of Appeals who sits in Iowa and won fulsome praise from Grassley in a previous confirmation hearing.
“We’re already witnessing how raw politics is infecting the process,” said Grassley, who criticized Democrats for floating names “they think will exert the most political pressure on me” but did not mention Kelly by name. “Everybody knows any nominee submitted in the middle of this presidential campaign isn’t getting confirmed. … Whatever you do, all the spin in the world isn’t going to change that fact.”
He added: “We’ve been up front and very clear, but in case there is any confusion over whether this political ploy would work, let me be perfectly clear: It won’t work.”
For an hour and a half, senators of both parties took turns citing historical precedent and reading long forgotten speeches from members of the opposite party bolstering their own points.
Sen. Patrick J. Leahy (D-Vt.), the top Democrat on the Judiciary Committee, argued that precedent, not old speeches, should guide the committee’s posture on an election-year nominee and again criticized the panel’s Republicans for announcing their intention to blockade a nominee after closed-door deliberations.
“I believe the Senate should be, could be, and sometimes is the conscience of the nation,” he said. “The Senate has never denied a Supreme Court nominee a hearing before. … The actions speak louder than any words, and we have always, we have always had hearings and votes where there has been a Supreme Court vacancy.”
One exception to the back-and-forth was Sen. Lindsey Graham (R-S.C.), who portrayed the current standoff as the unfortunate consequence of a series of power grabs on both sides — culminating in Democrats’ 2013 deployment of the “nuclear option,” abolishing the filibuster for lower-court judges.
“The moral high ground is a shaky place to be in the Senate when it comes to judges,” he said.
Graham said the die has been cast, and should there be a Republican president in his or her last year who sends a Supreme Court nominee to a Democratic Senate, the roles would reverse.
“You could use my words against me, and you would be absolutely right,” he said. “We are setting a precedent here today, Republicans are — that in the last year … that you’re not going to fill a vacancy of the Supreme Court based on what we’re doing here today. That’s going to be the new rule.”
Another Republican on the panel, Sen. John Cornyn (R-Texas) was even more blunt when referring to the nuclear option: “Every action has a reaction. That’s physics, and in this case, it’s simple justice. They’ve made their bed, so let’s dispense with the outrage.”
Grassley revisited the lengthy 1992 speech delivered by Vice President Biden, then a senator chairing the Judiciary Committee, in which he declared his intention not to move forward with any nominee in that presidential election year should a vacancy arise. Republican President George H.W. Bush was running for re-election at the time, and his prospects were looking increasingly dim.
There was, in fact, no vacancy, but Biden’s words have come to hang over the contemporary debate over whether the Senate should take up a replacement for the late Justice Antonin Scalia before a new president is elected.
A rebuttal came from Sen. Al Franken (D-Minn.), who said that the context of Biden’s words — coming ahead of the possible voluntary retirement of a Republican-appointed justice during the waning days of a Republican presidency — ought to matter.
“What he was talking about was somebody resigning to game the system,” he said. “We are talking here about someone who is replacing a Justice who has died. … No one dies to game the system.”
Thursday’s business meeting of the Judiciary Committee was the first such meeting since Scalia’s death was announced Feb. 13, creating the vacancy. A previously scheduled meeting was postponed last week, prompting Democratic protests.
On the Senate floor Thursday morning, Majority Leader Mitch McConnell gave Grassley a vote of confidence amid the barrage of Democratic attacks, highlighting Grassley’s “passion for letting Iowans and the American people be heard.”
“No wonder he’s working so hard now to give the people a voice in the direction of the Supreme Court,” McConnell said. “The next Supreme Court justice could dramatically change the direction of the court, and our country, for a generation.”
Meanwhile, Democrats are starting to press the Supreme Court issue on the campaign trail. A campaign fund linked to Senate Minority Leader Harry M. Reid (D-Nev.) unveiled an ad Wednesday taking aim at Sen. Kelly Ayotte (R-N.H.), who has joined the nominee blockade and also faces a difficult reelection battle this year. The ad from Senate Majority PAC links Ayotte’s desire to have the next president select the next Supreme Court justice with Donald Trump’s command of the Republican presidential field.
“Donald Trump wants the Senate to delay filling the Supreme Court vacancy so he can choose the nominee next year, and Senator Kelly Ayotte is right there to help,” the narrator says.