Abstract

Iowa Republican Senator Chuck Grassley finished his second term as Chair of the Senate Judiciary Committee with the early January 2019 adjournment of the 115th Congress. He was the first nonlawyer to lead the august committee over almost 200 years. A core panel duty is moving judicial nominees through the confirmation process, which helps senators discharge their constitutional advice and consent responsibility. Because the Chair plays an integral role—Grassley fulfilled this obligation in a critical, albeit controversial, manner—and because his service as Chair has ended, it is crucial to evaluate how the lawmaker discharged that important responsibility.

This Essay initially describes the history of federal judicial selection and Senator Grassley’s role from the commencement of 2015 until the beginning of 2019. It finds striking discrepancies between how the Chair acted over the two periods. In the 114th Congress, during President Barack Obama’s last half term when Republicans controlled a Senate majority, Grassley strictly enforced numerous rules and customs, mainly “blue slips,” and seriously delayed the confirmation process. These phenomena meant that the Senate confirmed the fewest appeals court judges since 1897–98. In profound contrast, across the 115th Congress during President Donald Trump’s first two years when the Grand Old Party (“GOP”) retained an upper chamber majority, Grassley jettisoned, changed or deemphasized a number of venerable strictures and conventions. For example, he did not respect Democratic home state politicians’ blue slips for appellate court nominees, limit the number of nominees in hearings to one appeals court prospect, or conduct panel votes after the American Bar Association (“ABA”) had completed evaluating and rating circuit and district court nominees. The dramatically accelerated pace of nominations and confirmations as well as Republican senators’ penchant for rubberstamping nominees and lockstep voting in the Judiciary Committee and on the Senate floor enabled Trump to appoint the most circuit judges ever, numbers of whom are ideologically conservative, young and talented. Indeed, a single Grand Old Party member cast the sole negative chamber ballot throughout 2017.

This Essay detects that President Trump, Senator Grassley and the Republican chamber majority exacerbated the selection process’s counterproductive downward spiral, riven by Democratic and Republican politicization, divisiveness, and systematic paybacks, which undermined judicial appointments. Because these dynamics subvert the president’s discharge of constitutional responsibilities to nominate and confirm excellent judges, the senators’ fulfillment of their constitutional duty to provide advice and consent, as well as the courts’ important responsibility to expeditiously, inexpensively and equitably resolve civil and criminal disputes, the last Part posits suggestions for improving this fundamental conundrum of American governance.

Document Type

Article

Publication Date

2019

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