Will judicial confirmations grind to a halt under Chairman Grassley?

As a 34-year incumbent, U.S. Senator Chuck Grassley will have a choice among leading the Senate’s Finance, Judiciary or Budget committees when the new Congress convenes in January. In a statement to the Des Moines Register yesterday, he said he will pick the Judiciary Committee.

“Oversight is too often overlooked as Congress focuses on new legislation […] So, anybody who knows my efforts in this area will understand that the Judiciary Committee’s work will reflect that sentiment. My goal is to promote transparency and accountability and restore the committee’s role as a true check on the massive and powerful federal bureaucracy.” […]

“The Judiciary Committee should not be a rubber stamp for the president,” he said. “However, as I have as ranking member, I will work to confirm consensus nominees. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence.

“Judges are to decide cases and controversies – not establish public policy or make law,” he said.

Sounds like under Grassley’s leadership, the Judiciary Committee will approve few, if any, of President Barack Obama’s judicial nominees for a vote on the Senate floor. I would guess that only conservative-leaning judges will meet the new chairman’s standard for “consensus.” Other political observers have reached the same conclusion (see also here). In recent years, Grassley and his fellow Republicans blocked confirmation votes on numerous judicial nominees, including everyone the president picked for the D.C. Circuit Court of Appeals regardless of qualifications. The standoff prompted Senate Democrats to sharply curtail the use of the filibuster on presidential nominations. Grassley and other Republicans warned at that time that someday they tables would be turned.

Taking a contrarian view, the non-profit Alliance for Justice argues here that “no one should give up on judicial confirmations in a Republican-controlled Senate.” I’ve posted excerpts from that piece after the jump, but it’s worth clicking through to read in full.

I also enclose below Grassley’s official comment on U.S. Attorney Loretta Lynch, whom the president has tapped to be the next attorney general. Grassley has been a vocal critic of outgoing Attorney General Eric Holder. The Judiciary Committee holds confirmation hearings on attorney general nominees.

UPDATE: Added more comments from Grassley on his role and the role of the Senate Judiciary Committee.

For Immediate Release

Friday, Nov. 7, 2014

Senate Judiciary Committee Ranking Member Chuck Grassley made the following statement on the White House’s intent to nominate U.S. Attorney Loretta Lynch to be the next Attorney General.

“I congratulate Ms. Lynch on her nomination.  Being selected to serve as our nation’s top law enforcement officer is both a tremendous honor and responsibility. As we move forward with the confirmation process, I have every confidence that Ms. Lynch will receive a very fair, but thorough, vetting by the Judiciary Committee.  U.S. Attorneys are rarely elevated directly to this position, so I look forward to learning more about her, how she will interact with Congress, and how she proposes to lead the department.  I’m hopeful that her tenure, if confirmed, will restore confidence in the Attorney General as a politically independent voice for the American people.”

Excerpts from an Alliance for Justice report on November 5:

But it would be myopic to focus solely on this initial response to rules reform and conclude that, with a Republican majority, the confirmation process will grind to a halt. After all, political rancor has always been part and parcel of judicial nominations. Republicans certainly have upped the ante, first with their blockade of the D.C. Circuit, and then with mindless, wasteful delays for every judicial nominee, but opposition party blustering about nominations is nothing new.

It’s helpful, therefore, to look at judicial appointments through a wider historical lens, a perspective that reveals signs of promise. Each of the three preceding two-term presidents- Presidents George W. Bush, Bill Clinton, and Ronald Reagan-faced an opposition Senate during his last two years in office. But in each case, about 20 percent of their total judicial appointments were confirmed during that time. Put another way, for all three presidents, 20 percent of their total confirmations came during the last 25 percent of their time in office: […]

That is not to say that confirmations did not slow down. According to data from the Congressional Research Service, President Clinton had only a 62 percent confirmation rate in his last two years (compared to 85 percent overall), and the Senate left 41 nominees pending at the end of the 106th Congress. Similarly, the last Senate of the Bush administration confirmed judicial nominees at a rate of 65 percent (compared to 87 percent for Bush’s entire two terms), and left 30 nominees pending.

Nonetheless, these data show that President Obama can continue to appoint federal judges throughout the remainder of his term, and that neither the White House nor Senate Democrats should yield to the narrative of an inevitable confirmation shutdown. Even before the next Congress, the Senate should confirm all of the 25 district court nominees already pending on the Senate calendar or waiting for a committee vote. Indeed, 16 of these nominees have the express support of their home-state Republican senators. Then, assuming President Obama matches the total of George W. Bush-the lowest of the last three two-term presidents-he would add 68 more confirmations during his final two years in office. Depending in part on which judges take senior status or retire, these numbers reflect a meaningful opportunity for the president to shape the judiciary and enhance his judicial legacy. […]

Finally, there’s this: Predicting a confirmation shutdown ignores what Senate Republicans still have at stake. Of the eight pending judicial nominees yet to have a confirmation hearing (and therefore less likely to be confirmed this year), six are from states with at least one Republican Senator. These include three Texas nominees that Republican Senators John Cornyn and Ted Cruz-both members of the Senate Judiciary Committee-recommended for nomination. Moreover, 25 of the 32 current vacancies without a nominee are in states with at least one Republican Senator, including seven that, because of their burdensome caseloads, are considered “judicial emergencies.” (Senator Charles Grassley, the presumptive Republican Chairman of the Judiciary Committee, has often said that judicial emergencies should be a priority.) On top of that, 16 more judges from red or split states have already announced they will retire or take senior status next year. Thus, a Republican shutdown of judicial confirmations will not be a simple rebuke of the president and Senate Democrats; it will directly harm the very constituents the new majority of Senators were elected to serve.

For Immediate Release

Monday, Nov. 10, 2014

With Republicans gaining a majority in the United States Senate, United States Senator Chuck Grassley of Iowa will likely become the Chairman of the Senate Judiciary Committee after senators decide this week on committee assignments for the new Congress that begins in January.  Grassley will also continue his work as a senior member of the Senate Finance and Budget committees and has served on the Senate Agriculture Committee.  He is the former Chairman and Ranking Member of the Senate Finance Committee, and could, in the future, exert his seniority to claim the final two years of his eligibility as chairman.  As a senior member Grassley will look to engage in comprehensive tax reform to increase fairness for individuals, create a pro-growth environment for entrepreneurs and small businesses, and boost global competitiveness for U.S. businesses.  Grassley will also work to promote new markets for U.S. agriculture, manufacturing and services through trade expansion.

Grassley Statement on the Senate Judiciary Committee

“As the new majority party, Senate Republicans have committed to returning the Senate to the deliberative body that the founders intended.  We’ll have regular debate on legislation and amendments from both Republicans and Democrats.  We’ll take difficult votes and pass a budget, just as the law requires.  In the end, the Senate will no longer be run like an autocracy as it has in the last six years.  

“The legislative branch of the federal government has dual roles under the constitution, a legislative function and an oversight function.  I take both of those responsibilities very seriously, but oversight is too often overlooked as Congress focuses on new legislation.  So, anybody who knows my efforts in this area will understand that the Judiciary Committee’s work will reflect that sentiment.  My goal is to promote transparency and accountability and restore the committee’s role as a true check on the massive and powerful federal bureaucracy.

“The Judiciary Committee also handles issues key to keeping America on the cutting edge of technology and business growth.  I’ll be conferring with members of the Judiciary Committee to put together an agenda that promotes an environment where innovators can create jobs, policy reflects the rule of law, and our civil liberties are strengthened without undermining the efforts of law enforcement or our intelligence community.  The committee has a lot of important matters to work on during the new Congress.  We’ll be looking at everything from legislation that enhances the economy and protects consumers; reduces regulatory burdens on businesses and curbs abuses to our civil justice system; shields kids from drugs and child predators; protects taxpayer dollars from waste, fraud and abuse; focuses on securing the border and improves legal immigration opportunities; and adapts our criminal laws to rapidly advancing technology.

“As far as judicial nominees, my approach will be to carefully review the qualifications of the candidates to the committee.  Lifetime appointments to the federal judiciary deserve scrutiny.  The Judiciary committee should not be a rubber stamp for the President.  However, as I have as Ranking Member, I will work to confirm consensus nominees.  Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence.  Judges are to decide cases and controversies – not establish public policy or make law.

“There’s a lot of work for our committee to do.  I look forward to working with my colleagues in the new Congress.”  

Role of the Senate Judiciary Committee

The Judiciary Committee plays an important role in several areas of policy along with providing critical oversight of the Department of Justice and several agencies within the Department of Homeland Security.  The committee also considers executive nominations for positions at the Department of Justice, Office of National Drug Control Policy, the United States Parole Commission, the United States Sentencing Commission, the Patent and Trademark Office and the State Justice Institute, as well as various nominations for the Departments of Homeland Security and Commerce.

In addition, the Judiciary Committee considers all Article III judicial nominations, including Supreme Court nominations, appellate court nominations, and district court nominations.  The committee also considers nominations to the Court of International Trade.

Click here to see the Senate Judiciary Committee’s full jurisdiction.

Background on Grassley’s work on the Senate Judiciary Committee.

Grassley has been a member of the Senate Judiciary Committee since being elected to the Senate.  He would be the first non-lawyer to chair the committee in its history.

The Judiciary Committee is where Grassley launched his crusade to expose fraud against the federal government.  In fact, his 1986 amendments to the False Claims Act have helped taxpayers recover nearly $40 billion that would otherwise be lost to fraud.

Grassley champions anti-trust enforcement, legal immigration and efforts to open the federal judiciary up to allow cameras in the courtroom.  He’s a true advocate for victims of crime and is a leader in the fight to keep illegal drugs out of the hands of young people.  Grassley opposes borrow-and-spend policies that saddle our children and grandchildren with debt, and has led efforts to end frivolous lawsuits and over burdensome regulations that hinder job-creating small businesses.

Along with legislation, Grassley immerses himself in the nitty-gritty work of rigorous government oversight.  Grassley is a leader when it comes to shedding light on the federal bureaucracy and bringing transparency to the people’s business.

Grassley’s pursuit of accountability has crisscrossed virtually every federal agency.  He’s a watchdog of the Justice Department and the FBI, exposing serious mistakes that led to botched investigations and risked public safety, and uncovering numerous examples of a double standard of discipline.  He’s also refereed turf wars between federal agencies that compromise U.S. border security.

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  • Grassley

    gives lip service to fairness, but his actions do not match his words. He consistently voted to block qualified nominees. He voted against the appointment of Caitlin Halligan to the DC Circuit because she was opposed by the NRA. He voted against confirmation of justices Sotomayor and Kagan. His list of “factors I consider important” did not keep him from voting to confirm Justice Thomas.