April 7, 2016 - Thursday
Splendor in the Grassley
If anyone's relieved to be back in session, it's Senator Jerry Moran (R-Kans.). The Kansas Republican got an earful back home when he unexpectedly broke ranks with his fellow Republicans and called for action on President Obama's Supreme Court pick. "I think we have a responsibility to have a hearing [on Merrick Gardland]," he said, to the astonishment of both voters and his party. Within hours, the Tea Party, state activists, and even national groups like FreedomWorks sprang into action, calling the suggestion "outrageous" and vowing to primary Moran. By last Friday, the senator's office was flooded by more than 28,000 emails blasting the conservative for stepping out of line.
Kansas Republicans were determined to make an example of Moran -- but they never got the chance. After a potential challenger accused him of "folding like a lawn chair," Moran thought better of it. Sheepishly, he retreated back into the fold, more evidence of the Republicans' steely resolve on the Scalia's replacement. If other conservative senators were weighing similar moves, they've almost certainly reconsidered. While liberals spend wads of cash on attack ads railing against Republicans for a position they held just one administration ago, their pressure is no match for voters'. Even the Washington Post called the Left's efforts doomed: "Right-leaning activists care more about the Supreme Court vacancy right now than liberals do. In the current climate, most conservatives -- even in blue states -- have no appetite for compromise."
Unlike the Left, which seems intent on ramming a nominee through the process in the twilight of Obama's term, most people would prefer to take their time filling the seat. Based on the GOP's internal polling, 54 percent of people "were more concerned about a liberal justice being chosen to replace Scalia, compared to the nearly 41 percent of respondents who were more worried about the seat being open for a year or more." That's a big gap -- big enough to give Republicans the confidence they need to hold their ground. Obviously, the American people share their concerns that Obama's only interest in filling the seat is finding a lifetime surrogate on the Court. No wonder stalwarts like Senator Roy Blunt (R-Mo.) are reiterating that they have "no plans" to meet with the president's nominee.
That hasn't stopped the Court itself from weighing in. Chief Justice John Roberts stuck his nose in the Senate's business before Scalia died, arguing that "the [confirmation] process is not functioning very well." That's interesting, fired back Judiciary Chairman Chuck Grassley (R-Iowa), since his Court's decision is partially to blame. "Many of my constituents believe, with all due respect, that the chief justice is part of the problem," Grassley said yesterday on the Senate floor. "They believe that [a] number of his votes have reflected political considerations, not legal ones." "The chief justice has it exactly backwards," Grassley also said. "The confirmation process doesn't make the justices appear political. The confirmation process has gotten political precisely because the court itself has drifted from the constitutional text and rendered decisions based instead on policy preferences."
It was the perfect response -- one, ironically, that echoed the sentiments of the very man they're replacing. Justice Scalia talked about this very thing in his dissent of Casey v. Planned Parenthood 24 years ago! "If nominees are now treated in a crude and political manner," he wrote, "it's because the Supreme Court itself has asked for it... Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward."
Look, for example at the Court's opinions in King v. Burwell, which twisted the statute to mean something it didn't, or NFIB v. Sebelius (which contorted the Constitution)—both decision designed to "save" Obamacare (which isn't the Court's job!). Roberts played a key role in both these decisions. And while he isn't the only villain in a judicial system that has by and large politicized itself, his Court has certainly ventured into social activist territory. As a result, people on both sides of the aisle are realizing the over-importance of the Court. In the last primary, Wisconsin's, 52 percent of all voters said they feel betrayed by the GOP. Thanks to the leadership of Majority Mitch McConnell, Chairman Grassley, and others, the Senate is doing its best to change that.
If you haven't read FRC's Travis Weber's take on the SCOTUS debate, check out his piece in the Philadelphia Inquirer, "Voters Right to Worry about Court Vacancy" here.