Recently, Eric Berger, a University of Nebraska law school administrator and professor criticized Iowa Senator Charles Grassley for not holding Senate confirmation hearings for Judge Merrick Garland for whom Professor Berger once worked as a law clerk. Berger’s loyalty to his former boss is admirable but his statement that Senator Grassley’s conduct has been anything less than exemplary is not.
Senator Grassley has declined to hold hearings on Judge Garland’s nomination to fill the seat of Justice Antonin Scalia, for whom I clerked, and who died in February. There is a long-standing rule and practice in the U.S. Senate that Supreme Court vacancies that happen in a presidential election year do not get filled until a new President and Senate have been elected by the voters. This is called “democracy” by some and “The Biden Rule” by others.
In 1992, when Vice President Joe Biden held the same office that Senator Grassley holds now Joe Biden announced that no Supreme Court vacancies would be filled in the 1992 election year even though there were then no vacancies on the Court. Biden just wanted to make crystal clear that as everyone has known for decades Supreme Court vacancies do not get filled in presidential elections years. In fact, even nominations to the second most important federal court after the Supreme Court have been left unfilled for up to 14 months prior to a presidential election. Senator Grassley is following tradition and practice in refusing to hold hearings during this circus like presidential election brawl. Grassley should be praised not blamed for his conduct in office.
Replacing Justice Scalia, who was a conservative, with Judge Garland, who is a liberal would in my professional opinion result in: 1) the elimination of a personal right to own a gun unless you serve in the National Guard; 2) it would extinguish religious liberty to such an extent that the Catholic Church might lose its tax exempt status because of its refusal to allow women to be priests; 3) it would lead to Supreme Court gerrymandering of every U.S. House of Representatives district under the guise that the Court was trying to be neutral; 4) it would lead to campaign finance laws under which challengers could never raise any money so incumbent politicians would be safe from serious electoral challenges; and 5) it would flood the federal courts with thousands of new case touching every aspect of American life as judicial “standing” rules are “relaxed.”
A catastrophe of this magnitude should only happen if the voters in November willfully chose to elect both a Democratic President and a majority Democrat Senate. Hillary Clinton is well ahead of Donald Trump so the only thing that stands between us and disaster is Senator Charles Grassley and the Republican Senate. The Framers of our Constitution believed in a system of checks and balances. Senator Grassley is checking and balancing the Democrats right now, and every American alive should praise him for doing so.
• Steven G. Calabresi is Clayton J. and Henry R. Barber Professor, Northwestern University Pritzker School of Law; Visiting Professor of Law, Fall 2013-2016, Yale University; Visiting Scholar Brown University.