"The Chief Justice has it exactly backwards. The confirmation process doesn't make the Justices appear political. The confirmation process has gotten political precisely because the court has drifted from the constitutional text, and rendered decisions based instead on policy preferences. "In short, the Justices themselves have gotten political. And because the Justices' decisions are often political and transgress their constitutional role, the process becomes more political. In fact, many of my constituents believe, with all due respect, that the Chief Justice is part of this problem."
About two months ago, shortly before Antonin Scalia's death, Supreme Court Chief Justice John Roberts delivered an interesting speech in Boston about politics and the judiciary. Roberts' argument, at its core, was about partisan rancor and political rancor shaping the public's understanding of the courts in unhelpful ways.
Of particular interest, Roberts noted that the confirmation process has contributed to a broader problem, being "used for something other than ensuring the qualifications of the nominees." The Chief Justice said, "When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. If the Democrats and Republicans have been fighting so furiously about whether you're going to be confirmed, it's natural for some member of the public to think, well, you must be identified in a particular way as a result of that process. And that's just not how -- we don't work as Democrats or Republicans."
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has never overseen a confirmation process for a Supreme Court nominee, went to the Senate floor yesterday to launch a broadside at Roberts, blaming him for the problem. From the senator's official transcript:
Grassley, sticking carefully to a prepared text, just kept going and going, blasting justices for "imposing their views, and not interpreting the law." Referring specifically to Roberts, whom Grassley warned not to intervene in the current vacancy fight, the senator added, "He would be well-served to address the reality, not the perception, that too often, there is little difference between the actions of the court and the actions of the political branches. Physician, heal thyself."
A video of the Iowa Republican's speech is available online.
It was a strange thing to see: a conservative senator furiously pushing back against a conservative Supreme Court justice, who made seemingly uncontroversial remarks two months ago. It was also a rather extraordinary example of buck-passing, with a senator who's played a brazenly partisan role, helping undermine the confirmation process to a degree unseen in American history, making the case that Americans should blame Roberts and his colleagues, not Grassley and his colleagues.
What's more, while I suspect some of the principles Grassley articulated may have broad appeal -- I, myself, have argued on multiple occasions that some justices too often play the role of partisan players in a political food fight -- the Iowa senator wasn't concerned in general about the politicization of the judiciary. Rather, Grassley's concerns were more focused: "In case after 5-4 case, the Justices the Democrats appointed vote for liberal policy results. This can't be a coincidence. Democrat Presidents know what they want when they nominate Justices -- Justices who will reach politically liberal results regardless of what the law requires."
The senator had no comparable concerns about conservative justices appointed by Republican presidents. In other words, in a striking display of irony, Grassley managed to politicize concerns about politicization -- he's concerned about politics on the high court, but only among the center-left jurists.
But even putting all of that aside, just on the surface, it's important to appreciate just how rare yesterday's tirade was. While senators criticize court rulings all the time, I don't know of any modern example in which the chairman of the Senate Judiciary Committee went after a like-minded Supreme Court chief justice in such a direct and personal way.
Grassley is feeling quite a bit of pressure right now, and he doesn't appear to be handling it particularly well.