Senator Chuck Grassley Has Twice Sabotaged Merrick Garland’s Judicial Appointments

Merrick Garland is no stranger to long waits orchestrated by Senator Chuck Grassley.

On July 20, Garland’s wait for a Supreme Court confirmation hearing became the longest in United States history. Nearly six months after President Obama nominated him to replace the late Justice Antonin Scalia, Garland is patiently awaiting a Senate hearing.

To Garland, the wait might not even seem that outrageous. The last time he had a court appointment delayed by Grassley, in 1995, he waited 18 months between his nomination and a vote in the Senate. At the time, Grassley was proposing the elimination of the judicial seat he had been named to – an action not taken since the Civil War.

While the Supreme Court has had nine justices for a century and a half, it was once a much more fluid body. At one point, there were only six justices; for a brief period during the Civil War, there were ten. The Constitution does not set any guidelines for how many justices sit on the Supreme Court; instead, Congress can dictate how large the court should be.

Naturally, this stipulation led to some partisan fights over the Supreme Court’s size. While the Judiciary Act of 1789 set the number of justices at six, the outgoing Federalist-dominated Congress reduced it to five. The new Democratic-Republican Congress quickly responded by reversing the action, then gave Thomas Jefferson the opportunity to nominate a third justice in 1807 by expanding the court’s size to seven seats.

The Republican Party expanded the Supreme Court to ten seats during the Civil War, but quickly reversed course when Abraham Lincoln was assassinated and Andrew Johnson took office. When Johnson named U.S. Attorney Henry Stanbery to fill a vacancy on the court, Senate Republicans were not happy with the choice. They suspected that Stanbery had helped the President write his veto message on the Civil Rights Act, one of several Reconstruction issues where Johnson and Congress clashed.

Three months after Stanbery’s nomination, Congress passed the Judicial Circuits Act of 1866. This legislation reduced the Supreme Court’s size to nine seats, rendering Stanbery’s nomination moot. It also established that the next two vacancies would not be filled, thus shrinking the court to seven seats through attrition.

Surprisingly, Johnson approved this legislation instead of vetoing it. The Federal Judicial Center says the idea of reducing the Supreme Court’s size was primarily driven by Chief Justice Salmon Chase, who hoped that the smaller court would help bolster his advocacy for higher justice salaries. Still, there was clearly a political benefit in denying Johnson the opportunity to name up to three Supreme Court justices. Almost immediately after Johnson left office, Congress passed the Judiciary Act of 1869 to increase the number of justices to nine.

There have been nine justices on the Court ever since. The temporary elimination of Justice James M. Wayne’s seat in 1868, reducing the Supreme Court’s size to eight justices under the Judiciary Act of 1866, marked the last time a judgeship had been abolished.

Under this precedent, Grassley sought to remove a seat from the U.S. Circuit Court of Appeals for the District of Columbia in 1995. Bill Clinton had nominated Garland to fill a vacancy on the 12-seat court in September of that year.

At the time, Grassley chaired a Senate subcommittee which had been investigating caseloads to determine whether some federal courts had too many judges. He argued that the D.C. court could be reduced to 11 seats, with a savings of $1 million a year, if the vacant judgeship was eliminated. His proposal would effectively negate Garland’s nomination, just as the reduction of the Supreme Court seat had vacated Johnson’s nomination of Stanbery.

Senator Orrin Hatch, then chairman of the Senate Judiciary Committee, still opted to hold a hearing on Garland’s nomination at the end of November. The committee favorably reported the nomination to the full Senate two weeks later. But Senator Bob Dole, the GOP majority leader, backed Grassley’s idea to cut the court back to 11 seats. Dole had the final word on whether to act on the nomination, and a vote was never scheduled.

Garland’s nomination resurfaced in 1997. While the Republicans had retained control of the Senate, they were coming under increasing criticism for their inaction on Clinton’s nominees. Clinton had nearly 100 judicial appointments to fill at the start of his second term. In 1996, the Senate had not confirmed any appeals courts judges for the first time in the 20th century. Only 17 district court judges were approved during the year.

Clinton had again nominated Garland to the D.C. court, this time after another judge had resigned and created an additional vacancy. The Judiciary Committee favorably reported the nomination to the full Senate in a 14-4 vote on March 6, 1997, with a majority of Republican members in favor of the nomination. Some Republican senators offered their approval as a sort of compromise: they would accept the nominee Clinton had put forward 18 months earlier, but they would take no action to restore the court to 12 justices.

Other Republicans, including Grassley, continued to oppose Garland. Grassley now said that the court’s caseload had fallen to a point where it could manage with 10 judges, thus trying once again to make Garland’s nomination moot.

Grassley’s statements suggested that his proposal was not solely in the interests of fiscal responsibility. He complained that judicial appointments had become “political patronage,” raising the specter of “activist judges … who are soft on criminals or who want to create their own laws.”

“Despite the attacks that have been launched against those of us who want to be responsible, all we are saying is send us qualified nominees who will interpret the law and not try to create it,” he said. “Send us nominees who will not favor defendants over victims, and who will be tough on crime. Send us nominees who will uphold the Constitution and not try to change it. As long as the judgeships are actually needed, if the administration sends us these kinds of nominees, they will be confirmed.”

The Senate hearing was cluttered with debates on judicial activism. Eventually, Senator Arlen Specter remarked that “a great deal has been said on this floor which is of great importance, but not really tremendously related to Merrick Garland’s nomination.”

Every Republican who opposed filling the judgeship, including Grassley, stressed that they considered Garland a qualified nominee and had no quarrel with him. Only Senator Paul Sarbanes challenged these assertions. “There is no way with a nominee having been sent to the Senate by the President, that an argument for not approving the nominee based on not needing the judgeship can be made without it carrying with it an ad hominem argument against the nominee,” he suggested.

The final vote was 76-23 in favor of confirming Garland for the judgeship.

Nearly 20 years later, a similar saga is playing out in the Senate. Grassley, now chair of the Senate Judiciary Committee, is again focusing on procedure instead of qualifications when it comes to Garland’s nomination. Instead of criticizing the worthiness of Obama’s nominee, Grassley maintains that an established “understanding” in the Senate holds that any Supreme Court vacancies that occur during a President’s final year in office should be left open until the next President takes office.

Ironically, Grassley’s predecessor was irritated by exactly this type of deviation. During the debate over whether Garland should be named to the U.S. Circuit Court of Appeals for the District of Columbia, Hatch grew frustrated over how the nomination had been sidetracked by tangential issues.

“As I suspected, nobody in this body is willing to challenge the merit of Merrick Garland’s nomination,” he said. “I have not heard one challenge to him yet. In fact, they openly concede that Mr. Garland is highly qualified to be an appellate judge. Rather, they use arguments that the D.C. court does not need 12 judges in order to oppose the confirmation of Mr. Garland for the 11th seat on this court.”

As the 2016 presidential election approaches, some Republican senators are saying they would support a hearing for Garland during Obama’s lame duck period if Democratic candidate Hillary Clinton is elected. Grassley suggested last month that he would be open to the idea if a majority of senators supported it. He later walked back the statement, saying he did not want to speculate.

Given his record, it would not be surprising if Grassley simply sought to reduce the size of the Supreme Court instead.