Chuck Grassley infuriated Democrats in 2016 by refusing to take up Merrick Garland for the Supreme Court. Now they’re growing even madder at the Senate Judiciary chairman for advising any high court justice contemplating retirement to get on with it.
“There is no principled stand. They will use whatever rationale they find expedient. There’s no conviction or principle to this. There’s no method to the madness,” said Sen. Richard Blumenthal (D-Conn.).
In the future when Republicans lose the Senate, he warned: “There will be a price to pay.”
Democrats think they have a shot a taking the majority back this fall and are aghast that Grassley and other Republicans are publicly nudging Justice Anthony Kennedy or other justices who are eyeing the exits to hang it up so they can confirm a new justice before the election. A Democratic majority would likely force President Donald Trump to nominate a more consensus pick for the Supreme Court, if Democrats would allow a vote at all after how Garland was treated.
The 84-year-old Grassley delivered his retirement advice in an interview with Hugh Hewitt Thursday. “I just hope that if there is going to be a nominee, I hope it’s now or within two or three weeks, because we’ve got to get this done before the election,” Grassley said. “So my message to any one of the nine Supreme Court justices, if you’re thinking about quitting this year, do it yesterday.
Grassley later clarified to reporters that he’s not telling Kennedy to retire. But he made clear that if anyone wants to get out during Trump’s presidency, they ought to do it now or Republicans may have to swallow a “more moderate” justice next year if they lose the Senate.
“I’m suggesting to them that if they’re the type of people that want Trump to replace them . that they ought to think about retiring yesterday,” Grassley told reporters. “Elections have consequences. We could end up without having a Republican Senate.”
By Grassley’s estimate, it would take more than two months from the time Trump names a new justice until Grassley’s committee would hold a hearing, and then a few more weeks before the justice would reach the Senate floor for a vote. If Kennedy or another justice were to retire now, conceivably the Senate could fill the vacancy in September or October, ahead of the election.
Grassley said he’s only heard “rumors” of a pending retirement. Other GOP senators said the same. But clearly those rumors are gaining steam: Asked a similar question in an interview last month, Grassley said it had been months since he’d heard any talk of Kennedy retiring.
“We can’t prepare for a Supreme Court vacancy until it actually happens. And you’ll know that [when] the guy or woman will wake up one morning and say: ‘I call it quits.’ And nobody else probably has any inkling of it,” Grassley said in late April.
The open talk of filling a vacancy this year is a striking contrast to what happened in 2016, when Justice Antonin Scalia died in February, Garland was nominated in March and Grassley and Senate Majority Leader Mitch McConnell blocked him from having a hearing, much less getting a floor vote.
Now that Trump is in charge, and the Senate majority is in play, Grassley wants to go as fast as possible.
“Giving a push of Supreme Court justices toward retirement raises some serious questions. And in light of what happened to Merrick Garland I think Republicans ought to think twice,” said Senate Minority Whip Dick Durbin (D-Ill.). “It is a signal that they are worried about future control of the Senate in light of a Supreme Court vacancy.”
“What is their rule?” asked Sen. Chris Murphy (D-Conn.) of Republicans. “There is no rule.”
Chatter about the high court has been increasing in Republican circles, both as a motivator for conservatives ahead of the election and as a potential problem if Republicans lose the Senate to Democrats this fall – a long-shot, but not impossible, scenario. Sen. Dean Heller (R-Nev.) kicked off the open rumination earlier this year, suggesting that “Kennedy is going to retire around sometime early summer” and that it would help motivate the GOP base in tight races like his own reelection campaign in Nevada.
Meanwhile, McConnell has prioritized the confirmation of lifetime judicial appointments to lower courts above all else the rest of the year. On Thursday, the Senate confirmed its 17th circuit judge of the year, the fastest pace in more than 40 years for a new president.
“I would think we should confirm any nominee to the Supreme Court promptly, and I think that would be the overwhelming consensus among Republicans,” said Sen. Ted Cruz (R-Texas). “There is a very significant possibility of a vacancy this summer.”
Unless moderate Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska rebel against a conservative nominee, there is little Democrats can do to stop Republicans – a major source of concern for the minority. Republicans changed the Supreme Court threshold to confirm Neil Gorsuch to the Supreme Court last year after Democrats mounted a filibuster, and now future nominees need only a simple majority to win confirmation.
“If it’s another ultraconservative judge I hope that Democrats and some moderate Republicans will say ‘no’ to the president," said Sen. Kirsten Gillibrand (D-N.Y.).
That could all change if Democrats win the Senate back and a future Majority Leader Chuck Schumer (D-N.Y.) is controlling the floor. Hence Grassley’s advice to any justice who’s on the fence about leaving and wants to be replaced by a Republican.
There are few things that Senate Republicans can do unilaterally with their 51-seat majority, but confirmations are one of them. And there would be nothing more consequential in the Senate this year than a Supreme Court fight.
“If [Grassley is] trying to coordinate with the judicial branch in order to pack the court for the far right and to further the vision of turning its constitution on its head .. Then that would be a terrible thing,” said Sen. Jeff Merkley (D-Ore.), who led the filibuster against Gorsuch.
Not every Republican is as comfortable as Grassley is in reminding the nine justices that the clock is ticking.
“I don’t think that that’s our call,” said Sen. Jeff Flake (R-Ariz.).
But Grassley’s sentiment is shared by most GOP senators, even if they won’t say it as explicitly.
“Only one person knows, and that’s Justice Kennedy,” Senate Majority Whip John Cornyn (R-Texas) said of the justice’s plans. “I assume if there’s a vacancy that Sen. McConnell and Sen. Grassley will make that a priority.”
Elana Schor contributed to this report.
Be First to Comment