Floor Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Politicizing the Court
Wednesday, March 2, 2016
Mr. President, by now everyone is pretty familiar with the Biden Rules. I won’t take the time to go over all of them again, but they boil down to a couple basic points.
First, the President should exercise restraint, and “not name a nominee until after the November election is completed.”
Or, stated differently: The President should let The People decide.
But if the President chooses not to follow this 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, as Chairman Biden said, “how good a person is nominated by the President.”
The historical record is pretty clear.
But we haven’t talked as much about one of the main reasons Chairman Biden was so adamant that shouldn’t consider a Supreme Court nominee during a heated presidential election.
It’s because of the tremendous damage such a hyper-political environment would cause the court, nominee, and the nation.
In short, if the Senate considered a Supreme Court nominee during a heated presidential election campaign, the court would become even more political than it already is.
That’s a big part of what was driving Chairman Biden in 1992.
Here’s how Chairman Biden described the problem in an interview about a week before his famous speech in 1992:
"Can you imagine dropping a nominee . . . into that fight, into that cauldron in the middle of a presidential year?"
He continued,
"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."
As a result, Chairman Biden concluded:
"Whomever the nominee was, good, bad or indifferent … would become a victim."
My friend then considered the tremendous damage that thrusting a Supreme Court nominee into a frenzied political environment would cause, and weighed it against the potential impact of an eight member court for a short time.
He concluded that the “minor” cost of the “3 or 4 cases” that would be reargued, are nothing compared to the damage a hyper-politicized fight would have on, “the nominee, the President, the Senate, and the nation, no matter how good a person is nominated by the President.”
The former Chairman concluded that because of how badly such a situation would politicize the process, and based on the historical record, the only reasonable and fair approach, or as he said, the “pragmatic” approach, is to not consider a nominee during the Presidential election.
As he said:
“once the political season is under way… action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.”
And that’s why Chairman Biden concluded that:
Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.
This, in part, is why Chairman Biden went to such lengths to explain the history of the bitter fights that occurred in presidential years. As he said:
“Some of our nation's most bitter and heated confirmation fights have come in Presidential election years.”
So, let me just say this about the discussion we’re having today.
Everyone knows this nominee isn’t going to get confirmed.
Republicans know it.
Democrats know it.
The President knows it.
Even the press knows it.
That’s why, for instance, the Washington Post called the President’s future nominee a “judicial kamikaze pilot” and the New York Times noted that the nominee would need an “almost suicidal willingness to become the central player in a political fight that seemed likely to end in failure.”
So, the only question is, why would the other side come to the floor to express “outrage” about not having a hearing?
Mr. President, it’s because they want to make this as political as possible.
The press has already picked up on it.
For instance, CNN reported that the other side hopes to use a fight over a Supreme Court nominee to “energize the Democratic base.”
And they’re already using the Supreme Court, and the eventual nominee, as a political weapon.
They want nothing more than to make the process as political as possible.
That’s why the President wants to push forward with a nominee who won’t get confirmed.
That’s why the other side is clamoring for a hearing on a nominee everyone knows won’t get confirmed.
And making the court even more political is the absolute last thing the court needs.
The court has been politicized enough already.
A recent Gallup poll documents the frustration I hear expressed at the grassroots in Iowa.
In the six years since Obama has appointed two Justices, the American people’s disapproval of the Supreme Court jumped from 28 percent disapproval in 2009, to 50 percent disapproval in 2015.
That’s what happens when Justices legislate from the bench.
That’s what happens when Justices make decisions based on their personal policy preferences, or what’s in their “heart,” rather than on the Constitution and the law.
The last thing we need is to further politicize the process and the court.
So, I just want to make sure everyone understands what all of this “outrage” is really about. It’s about making this process as political as possible.
We aren’t going to let that happen to the court, the nominee, or the nation.
We’re going to have a debate about what kind of Justice the American people want on the Supreme Court.
That’s what the American people deserve.
And that’s why we’re going to let the people decide.
Beyond just one justice, there's an even more basic debate here.
Because at my town meetings often somebody will come in very outraged about why I won’t impeach those Supreme Court justices. They say “they're making law instead of interpreting law. How come you put up with that?”
So we can have a debate between the Republican nominee and the Democrat nominee on what is the constitutional role of the court.
And we can have a debate about whether as the President says, we want somebody who expresses empathy and understanding of people's problems.
As we all know, that's not the purpose of the judicial branch of government.
That branch of government isn't supposed to let their personal feelings be involved whatsoever.
The President should not encourage that of justices he appoints.
Their job is to look at what the law says, the Constitution says, the facts of the case, and make that impartial judgment.
It would even go to the point of a justice appointed to the Supreme Court by a Republican who, when issued a decision that somehow the Affordable Care Act didn't fit into what Congress could do under interstate commerce, because then maybe that case could not be approved.
But that justice then decides to go to the taxing powers of the federal government instead. That’s a way that this President can have his legacy approved.
Now, that's a justice nominated by a Republican president who said that.
Those justices were trying to find all kinds of ways to do what you want to do as opposed to what the Constitution requires or what Congress wrote in legislation.
It would be nice to have a debate between a Democrat nominee and a Republican nominee, whether we have two, three, four national debates, or whether they have hundreds of appearances around the country, to have these basic constitutional issues discussed.
Then let the people decide.
Not just on one justice, but what the role is of the Supreme Court, or the courts generally, in our constitutional system.
I yield the floor.
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Grassley Introduces Bill to Make Sure Medicaid Beneficiaries Have Updated Information on Available Doctors
WASHINGTON – Sen. Chuck Grassley today introduced legislation that would make sure Medicaid programs give beneficiaries an updated list of participating doctors.
“In some states, there are no directories of participating doctors at all. In others, there are out of date directories that include deceased doctors and doctors who aren’t taking new Medicaid patients,” Grassley said. “State and federal taxpayers pay for Medicaid beneficiaries to receive service. When patients don’t know where to go, they can’t get treatment, and the program doesn’t work the way it should. This bill is a common sense move to help make sure Medicaid reflects the modern practice of medicine.”
Grassley said the state of Iowa already provides an updated directory through its existing fee-for-service Medicaid program and so sets an example of best practices for other states.
The Grassley bill, the Medicaid Directory of Caregivers, 2618, would require state Medicaid programs that operate on a fee-for-service or primary care case management basis to publish an electronic listing of physicians who have billed Medicaid in the prior year. This recent billing is an indication that the physician accepts Medicaid beneficiaries. The listing on the state’s Medicaid website would include the physician’s name, business address, telephone number, and specialty.
Medicaid enrollees served by managed care organizations already have the benefit of a health plan and its provider directory of participating doctors.
A companion bill, H.R. 3821, is pending in the House of Representatives. The House sponsors noted that the Government Accountability Office (GAO) identified access to care as one of the key issues facing the Medicaid program and that “maintaining and improving access to care is critical to ensuring that the program is effective for the individuals who rely on it.” The GAO said 38 states cited challenges in ensuring enough participating providers in the Medicaid program.
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Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, made the following statement on the Supreme Court vacancy, the Nuclear Option and the Bork/Kennedy episode in response to the Democrats’ attempt to hijack the bipartisan Comprehensive Addiction and Recovery Act with political maneuvering on the Supreme Court vacancy.
“We’ve had quite a discussion this morning on why the Judiciary Committee didn't meet. We were prepared to meet the same way we often do, when there's just maybe five minutes of business. We meet off the Senate floor here so that we can do both the work of the entire United States Senate and the work of the Judiciary Committee. That happens often.
“And that's the accommodation I asked for from the Minority. But they objected. Of course, they asked me to accommodate them on a hearing earlier this week on the EB 5 immigration issue. I postponed that hearing because the Minority members of the Judiciary committee didn’t want to have that hearing when this very important opioid addiction bill was on the floor. The heroin addiction bill is before the United States senate with 44,000 lives being lost in a year because of that addiction. And we’re considering important legislation to solve that problem. I didn’t get that accommodation so I postponed the meeting.
“And so what we heard on the floor here, while my colleagues were holding up the opioid bill, all this talk about having a debate about the next nominee to the Supreme Court, a nominee that hasn't even been made yet.
“So I came to the floor now to respond to just a couple ridiculous arguments that my friends made this morning.
“First of all, we are going to have a debate about the Supreme Court and the proper role of a Supreme Court Justice in our constitutional Republic. We're going to debate whether or not the American people want yet another justice who decides cases based on what's in his or her “heart” or whether they want a Justice who decides cases based on the Constitution.
“That’s not my estimation of the debate. That’s exactly what this President said regarding previous judges and Justices. He said he was looking for somebody who would have empathy for people who come before the court. Having empathy for people who come before the court means you’re supposed to do something different than what judges are supposed to do.
“Judges are supposed to look at the facts and the law, and base their decisions on the law. They aren’t supposed to base their decisions on personal feelings. We’re a nation based upon the Rule of Law. So, this is what the American people have to think about and debate. They need to have a voice in this process.
“And as Senator Biden said in 1992, or Senator Schumer said in 2007, we’re not going to consider a Supreme Court nominee during a heated presidential election.
“So, we have an opportunity to have a national debate. This whole debate is about whether we’re going to have Justices who decide cases based on “empathy” rather than the letter of the Constitution and the letter of the Statute.
“Then a second point. We’ve heard a lot of complaining around here -- and I suspect we’re going to hear a lot of it – because Senate Judiciary Republicans met and then made public our decision not to hold hearings on the Supreme Court nomination during a heated Presidential election year.
“Give me a break.
“We made a decision based on history, and our intention to protect the ability of the American people to make their voices heard. We didn’t play games. Just as Senator Biden wasn’t playing games when he gave that 20,000 word speech in 1992 where he said that we shouldn’t have a lame duck President make a nomination during a presidential election campaign.
“Just like Senator Schumer said in 2007 before the American Constitution Society, 18 months before George W. Bush was out of office.
“So that’s the historical approach. Very plain and open, both Democrats and Republicans taking the same tone so the People could make their voices heard. The American people should be heard not only on who’s going to be fill Justice Scalia’s seat, but also on the proper role of the Supreme Court, and whether or not the Court ought to be a legislative body.
“Like I said, we made that decision and immediately made it public.
“I don’t remember being invited to the secret meetings that the Democrats held before they walked on to the Senate floor of the United States Senate in November of 2013 and invoked the Nuclear Option so they could pack the D.C. Circuit. We wanted to save taxpayer money. The D.C. Circuit is the least worked circuit court in the country. Everyone knew you didn’t need three more judges.
“That court was fairly evenly divided between liberals and conservatives. But because that court reviews the President’s executive orders and regulations, this President wanted to make sure he had enough judges on that court, so that when the court reviews the actions he takes with his pen and phone, he would get favorable rulings. So they packed the D.C. Circuit.
“So, that’s why we had the Nuclear Option. Because the other side had to get around the 60 vote rule that we had here for the approval of judges.
“I also keep hearing this claim that Senator Biden, when he was Chairman of the Committee, should be praised for how he handled the Bork-Kennedy episode.
“Now, I happened to be here in 1987. I saw what happened to Judge Bork. I saw how he was smeared. And because he was smeared, that seat remained open and filled in early 1988. If that’s the other side’s argument, then I think we all know how weak their position is.
“Finally, let me say this.
“I said yesterday and I want to say it again, the other side knows that this nominee isn’t going to get confirmed. Everyone knows it. The only reason that they’re complaining about a hearing on the nominee is because they want to make the process as political as possible. And that goes to the heart of the matter.
“We’re not going to politicize this process in the middle of a Presidential election year.
“We’re going to let The People have a voice.”
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Grassley Asks Army Medical Command to Address Public Health Concerns, Allegations of Whistleblower Reprisal
WASHINGTON – Sen. Chuck Grassley has asked the head of the U.S. Army Medical Command to address the alleged reprisal against a whistleblower suspected of raising concerns about the safety of laboratory employees working with pathogens such as anthrax, plague and Ebola. Grassley also sought a description of the steps the Army Medical Command (MEDCOM) will take to fix the public health concerns in his letter.
“I bring this matter to your attention so that you may take appropriate action to address any public health concerns associated with this matter and cease any inappropriate reprisal actions taken by individuals within your command,” Grassley wrote to Lt. Gen. Nadja West, the Surgeon General and Commander of the U.S. Army Medical Command.
Grassley wrote that according to information obtained by his office, in 2015, the Department of Defense Office of the Inspector General (DoD OIG) conducted an investigation of Department of Defense Chemical Nuclear and Biological facilities. During that investigation, the DoD OIG received reports that certain routine inspections—including Army MEDCOM inspections—of containment laboratories did not improve lab safety and in fact had failed to address key problems within certain laboratories. Afterward, individuals within the MEDCOM chain of command allegedly removed a civilian physician employee they suspected of cooperation with the DoD OIG to an offsite office with a non-working phone and prohibited the physician’s contact with other staff.
“It is my understanding that this physician, among other things, must clinically assess any potential exposures that occur in the course of the researchers’ work, as a result of any mishaps or problems with the workers’ protective gear,” Grassley wrote. “It is also my understanding that, while this physician remains idled, there is no one available with the necessary experience and training to oversee appropriate risk assessment or treat potentially exposed workers and thus minimize any possible spread of an inadvertently released pathogen.
“This situation is precisely what the federal laws protecting whistleblowers are designed to prevent. Federal employees are required to disclose potential wrongdoing, so that agencies may address it. Ignoring those disclosures and punishing the whistleblower for making them only allows those problems to fester and flourish. In no case is this more troubling than when disclosures involve potential threats to public health and safety, like those at issue here.”
Grassley wrote that federal law protects employees who report information that they reasonably believe demonstrates “any violation of any law, rule, or regulation,” or “gross management, a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety.” Also, federal agencies may not “take or fail to take, or threaten to take or fail to take, any personnel action against any employee” for “cooperating with or disclosing information to the Inspector General of an agency.”
A long-time whistleblower advocate, Grassley led a bipartisan group of senators in launching the Whistleblower Protection Caucus last year.
Grassley sought a written response by March 17. The text of his letter is available here.
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