New York Times
By David Herszenhorn
February 19, 2016
Jim Dougherty sat in the last row of a crowded hearing room at City Hall here on Wednesday night, hands folded in his lap and a look of evident skepticism on his face, as Senator Charles E. Grassley, the chairman of the Senate Judiciary Committee, tried to defend the Republicans’ position that a Supreme Court nomination should be postponed until after the presidential election.
Then Mr. Dougherty took his shot. “To your point about delaying or waiting until the next president, I don’t see that that does anything but a disservice to the public,” said Mr. Dougherty, 59, a registered Republican who is supporting Gov. John Kasich of Ohio for president. “The Constitution says Supreme Court justices are nominated by the president with the advice and consent of the Senate.”
Divisive Supreme Court decisions are more likely to be re-examined — and possibly overturned — when a court changes. In the Roberts Court, 85 cases split 5 to 4 or 5 to 3 with Justice Scalia in the conservative majority, many with similar judicial themes.
As chairman of the Judiciary Committee, Mr. Grassley must decide whether to schedule a confirmation hearing on a court nominee, arguably giving him more power than any other individual senator in deciding if the process will move forward. But he has given off conflicting signals about his intentions.
In the immediate aftermath of Justice Antonin Scalia’s death on Feb. 13, Mr. Grassley said the Senate should not take up a nominee until after the presidential election. He later said he had not ruled out holding hearings. In the week since, he seemed increasingly uncertain, saying that his preference was that President Obama not make a nomination, but that he expected that one would be made anyway. In a series of town hall meetings this week, his answers to sometimes aggressive questioning from his constituents were ambiguous, and he repeatedly said he would take things “one step at a time.”
On Friday, in an op-ed article in The Washington Post that Mr. Grassley wrote with Senator Mitch McConnell, the majority leader, Mr. Grassley said voters should decide in the November presidential election whom they trusted to nominate the next justice.
If Mr. Grassley, 82, who is running for a seventh term, seems uncertain about how to proceed, the sentiment from the town hall meetings was clear. In a state that prides itself on good government, the message was that he should hold confirmation hearings, presuming Mr. Obama submits a qualified nominee.
“I do understand the hesitation, why Republicans would say we don’t want to give Obama the chance to influence the court for years and years and years,” Mr. Dougherty said. “But that’s the political side of the coin. I would like to think that, especially with Supreme Court nominations, we could get above the fray a little bit and determine what’s best for the public.”
Bill Nichols, 60, also pressed Mr. Grassley at the meeting in DeWitt, in eastern Iowa. “It’s all about good governance,” he said. Like many Iowans, Mr. Nichols switches party affiliation depending on the competitiveness of elections, and he is currently registered as a Republican. “It’s not about approving Obama’s pick; it’s about going through the process of advice and consent,” he said.
Mr. Grassley’s thorny predicament was made clear as he was repeatedly forced to shift from his usual plain-spoken, Iowa farmer demeanor to a more lecturing tone, offering intricate explanations of process and precedents in Washington.
Supreme Court Nominees Considered in Election Years Are Usually Confirmed
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Under heavy pressure at a town hall meeting at Muscatine Community College in Muscatine on Thursday, Mr. Grassley almost seemed to give in.
“The president is going to nominate somebody, or if he doesn’t nominate somebody, that’s his choice,” Mr. Grassley told Eva McBride, who had accused him of flip-flopping from 2008 when he said there was no reason to delay approving judicial nominees in President George W. Bush’s final year in office.
“Then it comes to the Senate,” Mr. Grassley continued. “And then at that point, we are going to act. We’re going to act in one of two ways. We are either going to give our consent or we’re not going to give our consent. Either way, the Constitution is going to be fulfilled.”
At a town meeting in Tipton, Iowa, Douglas Klein, a retired corporate comptroller, stood up to challenge the senator but first wanted to make sure he was showing the proper respect.
“I have a serious question for you, and I don’t want you to take this as. ...”
“Derogatory?” Mr. Grassley offered. “Thank you,” said Mr. Klein, 68.
“Or maybe you were trying to think, would I take it personal?” Mr. Grassley said. “You can say anything you want because you are entitled to your opinion.”
How Scalia’s Death Could Affect Major Supreme Court Cases in the 2015-16 Term
Justice Antonin Scalia’s death leaves the court with two basic options for cases left on the docket this term if the justices are deadlocked at 4 to 4.
Mr. Klein fired away: “I was wondering if you could enumerate which of the powers of the presidency the Constitution suspends during his final year in office?”
The senator gave no ground. “Don’t forget,” Mr. Grassley said, “advice and consent, that is a congressional power, and none of those congressional powers are suspended by the Constitution either.”
Larry Bailey, 76, of West Branch, Iowa, was one of many Republicans who said they were glad to have Mr. Grassley in a position to block Mr. Obama’s nominee. “It’ll be interesting to see if this Iowa farm boy can dig his heels in and say ‘no,’ ” Mr. Bailey said.
In Tipton, Mr. Grassley tried to explain that both parties had taken strong positions on nominations. He noted that Senator Chuck Schumer, Democrat of New York, once pledged to block any Supreme Court nomination made in the last 18 months of Mr. Bush’s term.
But Deborah VanderGaast, a registered Democrat who owns a day care center in Tipton, was having none of it. Congress, she said, often seemed about as mature as kindergartners.
“I think all of us can agree that we are so tired of the partisan politics and this whole thing with the Supreme Court nomination is partisan politics,” Ms. VanderGaast began.
“If he makes a good nomination, then let’s do the hearings and do it,” she said. “If it’s a bad nomination, fine — that’s fair. But doing it based on the fact that a Democratic president is making a nomination and we’re hoping that we can get a Republican president in, so they can do a nomination, so that our party can maintain or control the balance in the Supreme Court, is not representing us. It’s representing your party. And yes, I know the Democrats have done it in the past, and like I’ll tell the 5-year-olds in my care, just because he did it first, doesn’t make it right.”
The crowd in the basement meeting room of the Cedar County Courthouse broke out in applause. But they were not done.
“I know you are tired of talking about the Supreme Court nominee, probably heard enough about that,” another constituent, Larry Hogden, 70, began.
Still, Mr. Hogden wanted to better understand who was in charge of the process. He asked Mr. Grassley whether he could call hearings on his own as the Judiciary Committee chairman or if he had to have the approval of Mr. McConnell.
Turns out, Mr. Grassley had been wondering the same thing.
The senator said he had read through reports by the Congressional Research Service and consulted committee lawyers and concluded that Mr. McConnell probably could not hold the nomination out of committee without causing “a big quagmire.”
Mr. Hogden pounced, cutting Mr. Grassley off.
“That means that you have got even more power to control how this works out,” Mr. Hogden said. “And I would hope that you would consider working with President Obama.”
Sitting off to the side, Ernie Jennings wanted to make a different point. The intense focus on a single court nominee seemed to underscore Justice Scalia’s criticism that the Supreme Court had become overly political.
“None of us should be afraid or concerned with the appointment of one Supreme Court judge, but because of the way the Supreme Court seems to have been operating for a long time now, they seem to make laws, rather than interpret them.”
That gave Mr. Grassley an opening to advocate a nominee who, like Justice Scalia, would want to be known as a “textualist,” adding, “in other words, leave their ideas out of the decision.”
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