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Why Chuck Grassley Is Going All In On Trump-Appointed SCOTUS Justices

CREDIT: AP PHOTO/J. SCOTT APPLEWHITE
CREDIT: AP PHOTO/J. SCOTT APPLEWHITE

Sen. Chuck Grassley (R-IA), the chair of the Senate Judiciary Committee, says “there’s no problem with” presumptive Republican presidential nominee Donald Trump “appointing people to the Supreme Court,” according to the Associated Press. Grassley’s statement is informative in no small part because, while the senator apparently can find no reason why a reality show host who has built his presidential campaign on overt racism and appeals to violence should not choose a Supreme Court justice, Grassley has taken a very different position on whether President Obama should be allowed to do the same.

Almost immediately after news of conservative Justice Antonin Scalia’s death broke, Senate Majority Leader Mitch McConnell (R) announced that the GOP intended to offer massive resistance to anyone Obama chose to replace Scalia. Grassley has wholeheartedly supported this strategy, refusing even to hold a confirmation hearing for Supreme Court nominee Merrick Garland.

Grassley justified his support for the racist businessman’s potential Supreme Court nominees by noting that Trump once floated Judge William Pryor, a very conservative federal appeals court judge in Alabama, as a possible nominee to the high Court.

Shortly after Scalia’s death, Trump did indeed name Pryor, along with Judge Diane Sykes, another very conservative appellate judge, as possible Supreme Court nominees. Nevertheless, Trump has been sufficiently equivocal to give many conservatives heartburn over what kind of judges Trump would appoint. Early in his candidacy, Trump said his sister Maryanne Trump Barry, a left-leaning federal appeals court judge, would be a “phenomenal” justice. Since then, he promised to draw up of a list of 5–10 potential nominees with the help of the conservative Heritage Foundation, but he keeps pushing off the date when he will release this list.

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In any event, Grassley’s promise to blockade Obama’s nominee — until (Grassley hopes) the vacancy on the Supreme Court can be filled by Donald Trump — is consistent with the senator’s overall approach to the judiciary and to President Obama. In 2013, Grassley proposed eliminating three seats on the United States Court of Appeals for the District of Columbia Circuit, which is widely viewed as the second-most powerful court in the nation, in order to prevent Obama from filing them. Grassley and his fellow Republicans also held these seats open with filibusters until finally, in frustration, Senate Democrats responded by changing the Senate’s rules to prevent such tactics from being used to block lower-court nominees.

In January of 2015, however, Republicans took over the Senate, and McConnell and Grassley assumed their current positions as Majority Leader and Judiciary Chair. The result has been an utter collapse in the rate of judicial confirmations. All four of the last two-term presidents — Reagan, Clinton, Bush II and Obama — have faced a Senate controlled by the opposing party during their final two years in office. Under Obama, the Senate confirmed only 17 judges since Republicans took over. According to data provided by the Federal Judicial Center, that’s a tiny fraction of the number of judges confirmed during the comparable period in the Reagan, Clinton and Bush administrations:

Indeed, over the past several years, much of the Republican Party’s policy agenda hinged on their ability to retain control of the judiciary. Not long after President Obama signed the Affordable Care Act into law, Republicans responded with a bevy of lawsuits seeking to repeal the law. As one prominent conservative judge, who received the Presidential Medal of Freedom from President George W. Bush, explained, these lawsuits were rooted in a legal theory that had no basis “in either the text of the Constitution or Supreme Court precedent.” Nevertheless, the Republican-controlled Supreme Court came within a hair of striking down Obamacare.

Since then, Republican lawyers have run a similar playbook to attack President Obama’s policies on immigration and climate change — so far with a fair amount of success. Republican justices were also responsible for the Court’s decision to dismantle much of the nation’s campaign finance law in cases like Citizens United v. FEC, as well as the Court’s decision to neuter much of the Voting Rights Act.

After Scalia’s death stripped Republicans of their majority on the Supreme Court, lawyers seeking to defund unions lost a chance to impose a so-called right-to-work regime on every single public sector union in the country — a gambit that, had it prevailed, would have severely weakened a major pillar of the Democratic Party’s infrastructure. Scalia’s death may also have stripped religious objectors of the majority they needed to gain more control over their employees’ access to birth control.

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A Trump presidency represents Grassley’s best shot at regaining the majority he needs to implement Republican policy through litigation. Apparently, the senator is willing to set aside Trump’s racism and violent rhetoric if it means a shot at regaining that prize.