Last night and today, Sen. Jeff Merkley spent an admirable (and exhausting) 15 hours on the Senate floor explaining why the Senate should not allow Neil Gorsuch onto the Supreme Court. Somewhat less inspiring was what came next, when Judiciary Committee chairman Chuck Grassley gave his version of the history of obstructing judicial nominations.
Grassley began his tale in 2001, when George W. Bush was handed the presidency. During his term, Democrats filibustered a small number of his circuit court nominees, in each case going to great lengths to describe how the nominee’s record made clear their unsuitability for the bench.
But the tale didn’t start in 2001, as Grassley knows full well, having served on the Judiciary Committee throughout the 1990s, when it was Bill Clinton’s nominees who were being considered (or, frequently, not being considered). When Republicans took over the Senate after the 1994 midterm elections, they used their control of the Judiciary Committee to prevent nominees from getting hearings or votes. They also used secret holds to block the full Senate from voting on confirmation. During the eight years President Clinton served in office, more than 60 of his circuit and district court nominees became victims of the Republicans’ “pocket filibuster.”
Because so much of the obstruction occurred in the committee, and because it involved inaction rather than action, the GOP’s partisan assault against the traditional consideration of federal judges went unnoticed by most Americans.
But that doesn’t mean it didn’t happen. Chuck Grassley was there. He was part of it. Try as he might, he cannot simply put his party’s 1990s version of filibusters down the memory hole.
On January 20, 2001, George W. Bush took office, at which point Republicans spent eight years demanding that all judicial nominees receive floor votes.
But the minute it was a Democratic president again, the GOP went back into obstruction mode. President Obama made an effort to end the partisan wars on judicial nominees. He waited before making any nominations, then made his first one by itself, rather than as a group gathered together at the White House the way Bush had. What’s more, Obama chose David Hamilton, a moderate nominee with the strong support of his conservative Republican home state senator, Richard Lugar of Indiana. Nevertheless, Republicans filibustered him.
Even as the minority party, Republicans exercised every procedural trick in the book to slow down the confirmation process for all judicial nominees, regardless of level (circuit or district), regardless of support from home state Republicans, and even regardless of a complete lack of opposition at all. The goal was to leave as many vacancies open as possible, by hook or by crook, for a Republican president to fill.
Republicans escalated their war even further when Grassley himself announced that he and his party would refuse to allow President Obama to fill any of the three vacancies on the 11-member D.C. Circuit. He said this even before Obama had nominated anyone. And the rest of the GOP jumped on board. It was a sad spectacle to see highly qualified nominees at their confirmation hearings being told flat out by Republican members that they had nothing against them, and they would make terrific judges, but the senator was going to filibuster anyway.
And that’s exactly what the entire party did: filibuster all three nominees not on the merits, but simply to prevent the president from filling three vacancies with anyone. In late 2013, after nearly five years of nonstop obstruction, this sharp escalation drove the Democrats (then in the majority) to change the cloture rules, but only for circuit and district court nominees.
And then, of course, came the GOP’s nuclear option of 2016, the refusal to even consider Merrick Garland’s nomination. As Rep. Adam Schiff of California said: “When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout.”
And today? Less than three months into the Trump administration, with only one nominee, Republicans are threatening to change the rules for Supreme Court nominees. It isn’t like the Democrats haven’t given substantive reasons for opposing Neil Gorsuch. Nor have the Democrats vowed to keep the Supreme Court seat vacant no matter who Trump nominates; quite the opposite, in fact.
So when Sen. Grassley gives a history lesson, he really ought to include all of the history.
If he were telling the story of “The Fugitive,” he’d tell it as some innocent one-armed man being inexplicably pursued by a deranged Richard Kimble.