Fact Check

Fact Checker: Judge claims Grassley's blockade unprecedented

(from left) Jean Bott and Karla Miller, both of Coralville, speak with Democratic nominee for U.S. Senate Patty Judge at
(from left) Jean Bott and Karla Miller, both of Coralville, speak with Democratic nominee for U.S. Senate Patty Judge at Hamburg Inn #2 in Iowa City on Monday, June 6, 2016. Judge is a former Iowa Secretary of Agriculture and lieutenant governor. (Cliff Jette/The Gazette)

Introduction

“Chuck Grassley’s refusal to hold confirmation hearings on the Supreme Court is unprecedented.”

Source of claim: Albia Democrat Patty Judge, who is running for U.S. Senate against Grassley, a longtime Republican incumbent, posted the statement on her website.

Analysis

Grassley, who chairs the Senate Judiciary Committee, and other Republican leaders announced in February they would not hold confirmation hearings on any Supreme Court nominees until after a new president takes office in January. That position didn’t change after President Barack Obama nominated Merrick Garland, a federal appeals court judge, March 16.

The new justice will succeed Antonin Scalia, who died Feb. 13.

Judge, former Iowa agriculture secretary and lieutenant governor, isn’t the only one who’s called Grassley’s refusal to hold a hearing unprecedented. South Carolina Sen. Lindsey Graham, a Republican on the committee, said in March he would go along with the blockade, but thought it would make Senate relations worse.

“We are setting a precedent here today,” Graham said, according to the Huffington Post. “We’re headed to changing the rules, probably in a permanent fashion.”

Our check of Judge’s claim will look at both the time it has taken to vote on past Supreme Court nominees and whether there have been similar attempts in the past to stall confirmation.

Obama nominated Garland March 16, which means it has been 87 days as of Saturday, June 11.

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The New York Times reported Feb. 13 it has never taken the Senate more than 125 days to vote on Supreme Court successors from the time of nomination. The Times’s chart of all 151 nominees since George Washington shows, on average, nominees have been confirmed, rejected or withdrawn in 25 days. There are only eight whose appointments languished for more than 87 days.

Fact Checker spot-checked this information with the U.S. Senate’s Supreme Court nominations website and it proved accurate.

It’s possible the Judiciary Committee could relent in the next 38 days and confirm or reject Garland, which would mean he wouldn’t be the longest in history to await a decision.

Amy Howe on SCOTUSblog, a respected source on the Supreme Court, reported Feb. 13 “the historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.”

Howe notes three justice replacements occurring in election years since 1920: Justices Benjamin Cardozo in 1932, Frank Murphy in 1940 and Anthony Kennedy in 1988.

Also, according to Howe, President Dwight D. Eisenhower made a recess appointment of William J. Brennan but did not formally nominate him to replace Sherman Minton, who retired in October 1956, until after re-election in the 1956 general election. In 1968, the Senate blocked President Lyndon B. Johnson’s nomination of sitting Justice Abe Fortas to replace retiring Chief Justice Earl Warren. However, Warren decided to keep his seat and Fortas remained an associate justice.

There are a few examples in history of opposing parties trying to stall Supreme Court confirmations — but those were in situations in which a nomination was made after a new president had been elected but had not yet taken office, according to research by Robin Kar and Jason Mazzone, faculty at the University of Illinois College of Law.

“There have been only six prior cases in which the Senate pursued a course of action that — like the current Republican Plan — deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor,” Kar and Mazzone wrote. “All such cases involved a President who either (a) attained office by succession rather than election or (b) began the nomination process after the election of his successor. Neither circumstance applies to President Barack Obama’s

nomination of Judge Garland.”

Conclusion

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History is often open to interpretation, but U.S. Senate records showing when Supreme Court nominations were approved or rejected since George Washington’s time indicate very few have been postponed as long as Garland’s. If the Senate Judiciary Committee, led by Grassley, wants to avoid the distinction of unprecedented stalling, it would have to hold a hearing within the next month or so. That doesn’t look likely, since Republicans have indicated they will wait until after a new president is inaugurated Jan. 20.

But because that’s theoretically still possible, we give Judge’s claim a B.

CRITERIA

The Fact Checker team checks statements made by an Iowa political candidate/office holder or a national candidate/office holder about Iowa, or in advertisements that appear in our market. Claims must be independently verifiable. We give statements grades from A to F based on accuracy and context.

If you spot a claim you think needs checking, email factchecker@thegazette.com.

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Or if you have a story idea we should look into? Tell us here.