On Wednesday Senate Minority Leader Harry Reid (D-NV) attacked U.S. Senator Chuck Grassley (R-Iowa) because of his refusal to allow hearings in the Senate Judiciary Committee for any nominee President Barack Obama puts forth to replace the late Supreme Court Justice Antonin Scalia.
Reid called Grassley “an inept chairman,” Politico reports:
“Sen. Grassley has surrendered every pretense of independence … so partisan, in fact, that the senior senator from Iowa won’t respond to a personal invitation from the president,” Reid said in a 10-minute speech almost entirely trained on Grassley.
“Think about that. The president of the United States calls a very senior senator here and doesn’t even respond to the president. This is a sad day for one of the proudest committees in the United States Senate,” Reid said. “We don’t have to go back to 1980 or 1982 to prove the current chairman’s ineptness. Look at the spike in judicial emergencies that occurred on Chairman Grassley’s watch just in the past year.”
There are 31 judicial emergencies in the lower courts where judges are overworked and understaffed, according to the federal government. McConnell and Grassley had been steadily but slowly confirming lower level judges over the past 14 months, but there are growing doubts over how many more can be processed given the worsening firefight over the Supreme Court vacancy.
Grassley responded today on a speech on the floor of the U.S. Senate:
Mr. President, yesterday the minority leader came to the floor to disparage the work of the Senate Judiciary Committee, and the Senate as a whole.
And of course, as he does from time to time, he launched into a personal attack against me.
That’s ok. I don’t intend to return the favor.
I don’t want to talk about the nuclear option and the tremendous damage it did to the Senate.
Or, the years and years that Democrat senators had to endure under his leadership, without even being able to offer any amendments.
We all know that’s just how some people act when they don’t get their way.
But childish tantrums aren’t appropriate for the Senate.
I think if my friend Senator Biden had been in the Chamber yesterday, he would have said: ‘that’s a bunch of malarkey.’
I didn’t come to the floor to talk about the minority leader. I did, however, want to follow up on my remarks from earlier this week on the Biden Rules.
Now, in fairness, Senator Biden didn’t just make these rules up out of thin air.
His speech went into great historical detail on the history and practice of vacancies in presidential election years. He discussed how the Senate has handled these vacancies, and how presidents have – and should – handle them.
Based on that history, and a dose of good sense, Senator Biden laid out the rules that govern Supreme Court vacancies arising during a presidential election year. And of course, he delivered his remarks when we had divided government, as we have today.
Now, the Biden Rules are pretty clear. My friend from Delaware did a wonderful job laying out the history, and providing many of the sound reasons for the Biden Rules.
And they boil down to two fundamental points.
First, the President should exercise restraint, and “not name a nominee until after the November election is completed.” As I said on Monday, President Lincoln is a good role model for this practice.
Or, stated differently: The President should let The People decide.
But if the President chooses not to follow President Lincoln’s model, but instead, as Chairman Biden said, “goes the way of Fillmore and Johnson and presses an election-year nomination.”
Then, the Senate shouldn’t consider the nomination, and shouldn’t hold hearings. It doesn’t matter “how good a person is nominated by the President.”
Or, stated plainly: It’s the principle, not the person that matters.
Now, as I said on Monday, Vice President Biden is an honorable man and he is loyal. Those of us who know him well, know this to be true.
So, I wasn’t surprised on Monday evening when he released a short statement defending his remarks, and of course defending the President’s decision to press forward with a nominee.
Like I predicted on Monday, Vice President Biden is a loyal Number Two.
But the Vice President had the difficult task of explaining, today, why all of the arguments he made so cogently in 1992, aren’t really his view.
It was a tough sell. And Vice President Biden did his best.
But I must say, I think CHAIRMAN Biden would view VICE PRESIDENT Biden’s comments the same way he’d view the Minority Leader’s comments yesterday:
He’d call it like he sees it: He’d call it “a bunch of malarkey.”
Here’s part of what Vice President Biden said on Monday:
“Some critics say that one excerpt of a speech is evidence that I do not support filling a Supreme Court vacancy during an election year. That is not an accurate description of my views on the subject. In the same speech critics are pointing to today, I urged the Senate and the White House to overcome partisan differences and work together to ensure the Court functions as the Founding Fathers intended.”
Well, Mr. President, that doesn’t sound consistent with all of those Biden Rules I shared with my colleagues on Monday.
So we ask: Is it possible to square Chairman Biden’s 1992 election year statement with Vice President Biden’s 2016 election year statement?
Was Chairman Biden’s 1992 statement really just all about greater cooperation between the Senate and the White House?
When Chairman Biden said, in 1992, that if a vacancy suddenly arises, “action on a Supreme Court nomination must be put off until after the election campaign is over,” was he simply calling for more cooperation?
When he called for withholding consent, “no matter how good a person is nominated by the President,” was he merely suggesting that the President and Senate work together a little bit more?
When he said we shouldn’t hold hearings under these circumstances, was that all about cooperation between the branches?
Well, since we’re talking about filling Justice Scalia’s seat, it seems appropriate to ask: How would he solve this puzzle?
I suppose he’d start with the text. So, let’s begin there.
In 1992, did Chairman Biden discuss cooperation between the branches?
Yes, in fact he did.
So far, so good, for Vice President Biden.
But that can’t be the end of the matter, because that doesn’t explain the two vastly different interpretations of the same statement.
Let’s look a little more closely at the text.
Here’s what Chairman Biden said about cooperation between the branches:
“Let me start with the nomination process and how the process might be changed in the next administration, whether it is a Democrat or Republican.”
Well, Mr. President, we didn’t have to search very long to unearth textual evidence regarding the meaning of Chairman Biden’s words in 1992.
Yes, he shared some thoughts about how he believed the President and Senate might work together. But that cooperation was to occur “in the next administration.”
In other words AFTER the presidential election of 1992.
AFTER the Senate withheld consent on any nominee “no matter how good a person is nominated by the President.”
So the text is clear.
But if you need more evidence that this is an accurate understanding of what the Biden Rules mean, look no further than a lengthy Washington Post article published one week prior. In that interview, he made his views quite clear.
“If someone steps down, I would highly recommend the president not name someone, not send a name up.”
And what if the President does send someone up?
“If [the President] did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.”
Specifically, my friend Chairman Biden said, “Can you imagine dropping a nominee, after the three or four or five decisions that are about to made by the Supreme Court, into that fight, into that cauldron in the middle of a presidential year?”
Chairman Biden went on. “I believe there would be no bounds of propriety that would be honored by either side. . . . The environment within which such a hearing would be held would be so supercharged and so prone to be able to be distorted.”
At the end of the day, Mr. President, the text of Chairman Biden’s 1992 statement is clear.
In 2016, when he’s serving as a loyal Number Two to this President, Vice President Biden is forced to argue that the Biden Rules secretly mean the exact opposite of what they say.
Ironically, that’s a trick Justice Scalia taught us all to recognize, and reject, on sight.
We know we should look to the clear meaning of his text, as Justice Scalia taught us.
This was not a one-off comment by Senator Biden.
It was a 20,000-word floor speech laying out, forcefully, a difficult and principled decision. It relied on historical precedent, respect for democracy, and respect for the integrity of the nomination process.
There is no doubt what he meant.
Mr. President, there is of course a broader point here.
Words have meaning.
Justice Scalia devoted his adult life to these first principles.
Do the American people want to elect a President who will nominate a Justice in the mold of Scalia, to replace him?
Or do they want to elect President Clinton or Sanders, who will nominate a Justice who will move the court in a drastically more liberal direction?
Do they want a Justice who will look to constitutional text when drilling down on the most difficult constitutional questions?
Or, do they want yet another Justice who, on those really tough cases, bases decisions on “what is in the judge’s heart” as then-Senator Obama famously said.
It comes down to this.
We’ve lost one of our great jurists.
It’s up to the American people to decide whether we preserve his legacy.
This is a debate we should have.
This is a debate the American people should have.
And then we should let the American people decide.