Obama considering Supreme Court nomination that would put Grassley on the spot

“The Federal Bureau of Investigation has been conducting background interviews” on Eighth Circuit Court of Appeals Judge Jane Kelly, Julie Hirschfeld Davis reported today for the New York Times. Assuming that news is accurate, Judge Kelly is on President Barack Obama’s list of possible nominees to the U.S. Supreme Court. Within hours of Justice Antonin Scalia’s death last month, many court-watchers speculated that Kelly could be named to replace him. After spending most of her career as a federal public defender, she won unanimous confirmation to the Eighth Circuit Court of Appeals in 2013 with strong support from Iowa’s senior Senator Chuck Grassley.

As Senate Judiciary Committee chair, Grassley has the power to schedule hearings and votes on any judicial nominee. He has promised not to give Obama’s choice any hearing in the Senate. Denying a Supreme Court nominee any consideration for a full year is without precedent in U.S. history. Yet Grassley and Senate Majority Leader Mitch McConnell stuck to that stance yesterday during a White House meeting with the president and Vice President Joe Biden. I enclose below Grassley’s official comment on that meeting, a guest column the senator’s office submitted to Iowa media outlets late last week, and Grassley’s Senate floor speech from April 2013, urging colleagues to confirm Kelly.

Already, Democrats are bombarding Grassley and other GOP senators with calls to “do your job.” Nominating Kelly for the Supreme Court vacancy would put Grassley in a particularly awkward position, forcing him to explain over and over why he refuses to give a well-regarded, highly-qualified Iowa judge even the courtesy of a Senate hearing, let alone a floor vote.

UPDATE: According to appellate attorney Steve Klepper, Kelly set the record for fastest Senate approval of an Obama appeals court nominee: 83 days from nomination to confirmation.

SECOND UPDATE: The Cedar Rapids Gazette reported, “Grassley said Wednesday [March 2] that news the White House had ordered checks on Judge Jane Kelly of Cedar Rapids as a possible Supreme Court nominee wouldn’t neutralize his stance against any choice of President Barack Obama.” The same article quoted from a statement the senator released last month, noting that “It’s not an issue of any particular candidate. […] If a Democrat wins the White House, I’m sure Jane Kelly would be on any Democrat’s short list of candidates.”

Grassley Statement after Meeting with President Obama on Supreme Court Vacancy

Mar 01, 2016
Senate Judiciary Committee Chairman Chuck Grassley made the following statement after a meeting with President Obama about the Supreme Court vacancy and other issues before the Senate, including the opioid epidemic that is devastating communities across the country, criminal justice reform and Puerto Rico.

“The American people deserve the right to be heard. It’s the fair and reasonable approach. They made their voices heard in 2014 when they signaled they wanted a departure from President Obama’s policies by revoking the Democrats’ Senate majority and expanding Republican ranks in the House of Representatives. Now, with the stakes as high as ever and the political season is underway, we should hear from them again.

“There’s a growing feeling of isolation among a lot of Americans who feel left out by political elites. Executive orders and liberal courts are trampling on religious liberty and property ownership, for example, and snubbing the rule of law and endangering the right to keep and bear arms. The executive branch is actively using the judicial branch of government to get around Congress and undermine the process of representative government

“A recent Gallup poll documents this frustration that I hear expressed at the grassroots of 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.

“Whether everybody in the meeting today wanted to admit it, we all know that considering a nomination in the middle of a heated presidential campaign is bad for the nominee, bad for the court, bad for the process, and ultimately bad for the nation. It’s time for the people to voice their opinion about the role of the Supreme Court in our constitutional system of government.”

Giving the People a Voice – The Supreme Court Vacancy

Feb 26, 2016

By U.S. Senator Chuck Grassley

Our system of government was designed to be of the people, by the people and for the people. To protect the God-given natural rights of each citizen and preserve our liberty, the U.S. Constitution was specifically designed to limit governmental power. That’s why we have checks and balances to keep any one of the co-equal branches from overreaching. It’s why we have elections. And it’s why we have robust public debates ahead of those elections to determine who best can lead our country and make lasting decisions like nominating Supreme Court justices.

Iowans have a special appreciation for these debates. We just completed another edition of our unique, first-in-the-nation caucuses, where citizens come together to openly debate and discuss the best direction for the future of our nation.

This year, Iowans and the entire country have a unique opportunity to expand that debate to include the role of the Supreme Court and the direction it will take for an entire generation. For the first time in decades, this debate has palpable relevance and lasting consequences.

Americans have a chance to deliberate the characteristics we want in a Supreme Court justice and which presidential candidate shares our vision for the role of the court. Do we want someone who will decide cases based on the law, as the late Justice Scalia did? Or do we want a justice who believes the truly difficult cases should be decided based on “what is in the judge’s heart” as then-Senator Obama famously said?

During my regular meetings with constituents in Iowa, I often hear expressions of concern and frustration about justices legislating from the bench, essentially issuing rulings that create new law, rather than simply interpreting the law. Others worry that justices allow their own political views to cloud their judgment. These are legitimate issues that should be debated as a nation. And now is the perfect time for that debate, as voters prepare to choose our next president, Democrat or Republican.

So, as Americans already have begun casting votes for the next president, my Republican colleagues and I will exercise our constitutional authority to withhold consent on a Supreme Court nominee. Our decision is based on the principle that in our American system of representative government the people should be empowered to weigh in on such a consequential decision, the direction of the Supreme Court.

Our nation is divided, our government is divided, and our high court hangs in the balance. In 2014, voters signaled they wanted a departure from President Obama’s policies when they revoked the Democrats’ Senate majority and expanded Republican ranks in the House of Representatives. As the Senate fulfills its “advice and consent” responsibility, we must consider the will of the people. As Senators, that’s our job.

The President certainly has the constitutional authority to nominate a justice in an election year, and he intends to use it, even though other presidents, like Abraham Lincoln, chose restraint. In the Senate, we have the equal constitutional authority to consent or withhold consent. This is not a new or even partisan idea.

For example, then-Senate Judiciary Committee Chairman Joe Biden, lectured in 1992 that “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” In 2005, then-Senate Majority Leader Harry Reid, a Democrat, stated, “Nowhere in that document [the Constitution] does it say the Senate has a duty to give presidential nominees a vote.” In 2007, a year and a half before the end of George W. Bush’s tenure as president, Senator Chuck Schumer, heir apparent as Senate Democratic Leader, proclaimed the Senate “should not confirm a Supreme Court nominee except in extraordinary circumstances.”

History supports this practice. Not since 1888 has an election year nominee been confirmed during a divided government to fill a vacancy occurring in the same year.

We are at a rare crossroad in American history, with much at stake. In a government of the people, by the people and for the people, it is the people who should have a say in this debate. As voters continue to cast ballots during this election, they will know that their vote will not only help to determine who gets the keys to the White House for the next four years, but also who will select our next lifetime appointment to the Supreme Court.

I know Iowans are up to the task.

Floor statement of Senator Chuck Grassley (as prepared), April 24, 2013:

Mr. President,

I rise today in support of the nomination of Jane Kelly to be United States Circuit Judge for the Eight Circuit.
The nominee before us today, Ms. Kelly, presently serves as an assistant public defender in the Federal Public Defender’s office for the Northern District of Iowa in the Cedar Rapids office.

She is well regarded in my home state of Iowa and so I’m pleased to support Senator Harkin’s recommendation that he made to the President and subsequently the President’s nomination of Ms. Kelly.

She received her B.A. summa cum laude from Duke University in 1987. After spending a few months in New Zealand as a Fulbright Scholar, she went on to Harvard Law School. She graduated cum laude, earning her J.D. degree in 1991.

Upon graduation, she served as a law clerk – first for Judge Donald J. Porter, United States District Court for the District of South Dakota, then for Judge David R. Hansen of the Eighth Circuit.

Judge Hansen has sent us a letter in support for Ms. Kelly. He was a person that I have suggested to Republican Presidents for both district judge and then for his long tenure on the Eighth Circuit. He has been a friend of mine as well. This is what now-retired Judge Hansen said in support of Ms. Kelly. “She is a forthright woman of high integrity and honest character” and that she has an “exceptionally keen intellect”. Judge Hansen concludes that “she will be a welcomed addition to the Court if confirmed.” I would add that I have no doubt that she will be confirmed.

Beginning in 1994, she has served as an assistant federal public defender in the Northern District of Iowa in the Cedar Rapids office. She handles criminal matters for indigent defendants and has been responsible for trying a wide range of crimes. She became the supervising attorney for the Cedar Rapids office in 1999.

Ms. Kelly is active in the bar and in district court matters. She presently serves on the Criminal Justice Act Panel Selection Committee, the blue-ribbon panel for criminal cases, and the Facilities Security Committee of the district court.

In 2004, her peers honored her with the John Adams Award from the Iowa Association of Criminal Defense Lawyers and Drake University Law School. She was unanimously chosen for this award, which recognizes individuals who show a commitment to the constitutional rights of criminal defense.

The American Bar Association’s Standing Committee on the Federal Judiciary gave her a Unanimous “Qualified” rating.

I congratulate Ms. Kelly on her accomplishments and wish her well in her new duties. I am pleased to support her confirmation and urge my colleagues to join me.

Now I would like to spend a couple minutes to update my colleagues on the progress we are making with respect to judicial nominations.

With this confirmation, the Senate will have confirmed 185 judicial nominations to the District and Circuit Courts. Only two of President Obama’s nominees failed confirmation.

That’s a record of 185 to 2.

As I stated last week, a .989 batting average is a record any President would be thrilled with. Yet this President, without justification, complains about obstruction and delay.

Today’s confirmation is the 14th so far this year – including 5 circuit judges and 9 district judges.

Let me put that in perspective for my colleagues. At this point in the second term of the Bush presidency, only one judicial nomination had been confirmed. A comparative record of 14 – 1 is nothing to cry about.

As I said, this is the fifth nominee to be confirmed as a circuit judge this year, and the 35th overall. Over 76 percent of his circuit nominees have been confirmed. President Clinton ended up at 73 percent; President Bush at 71 percent. So President Obama is doing better than the previous two Presidents.

So again, this President and Senate Democrats should have no complaints on the judicial confirmation process. The fact of the matter is that President Obama is doing quite well. I yield the floor.

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