Executive Session

Floor Speech

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Mr. GRASSLEY. Madam President, tonight the President will announce his nominee for Associate Justice of the Supreme Court of the United States. That announcement is because of a vacancy created by Justice Kennedy's recent retirement.

Justice Kennedy left an important legacy of more than three decades on the Supreme Court. I voted for his confirmation 30 years ago. Justice Kennedy demonstrated his deep commitment to our constitutional liberties. It is no surprise that some of his greatest opinions defended free speech and religious liberty. I hope Justice Kennedy's successor carries forward this legacy.

I am optimistic that the person the President nominates tonight will be highly qualified and committed to the rule of law. I am optimistic because President Trump already appointed one such Supreme Court Justice: Neil Gorsuch.

The President's selection process is the most transparent in history. He issued a list of potential Supreme Court nominees directly to the American people during his 2016 campaign. To my knowledge, no other Presidential candidate has ever done that. The list demonstrated the types of Justices he would appoint to the Bench. The American people voted for President Trump in part because of that list of names and what it reflected and his promise to nominate these types of jurists.

Any of the 25 people on the President's list would be an excellent choice and worthy of the Senate's serious consideration, but already we are seeing from liberal outside groups and some of the Democratic leadership a desperate attempt to block the nominee--any nominee--by whatever means necessary. Democratic leaders have pledged to block anyone from the President's list without even knowing who that nominee is and regardless of his or her qualifications. Think about that a while. The President has a list of 25 names, but some Democratic leaders have already said that not one of them is acceptable, zero out of 25 highly respected, highly qualified individuals--not even worthy of this body's consideration. That is an incredible statement by some of the leaders on the other side of the aisle.

This preemptive attack on a yet-to-be-named nominee is a preview of the obstacles and calls for needless delays we are sure to see from some of my colleagues. I have already heard several weak arguments made in an attempt to delay the confirmation hearing, but the Democratic leaders have shown their hand. The motive is to block any nominee from the President's list. Whatever reasons for delay, it is clear that their single motivating factor is blocking the nominee selected tonight, whoever he or she is.

The first delay tactic I heard was that the Senate shouldn't confirm a nominee during a midterm election, but the Senate has never operated like that. Justice Kagan and Justice Breyer were confirmed in midterm election years, in addition to many Justices who served before them. Democratic leadership and outside groups are so desperate to block this nominee that they are willing to rewrite history to do it.

We have a long history of confirming Justices nominated during a midterm election year. We don't have a long history of confirming Justices nominated during a Presidential election year. It has been nearly 80 years since we have done that. Former chairman Joe Biden announced in 1992 that the Senate shouldn't confirm any Justices during a Presidential election year. Senator Schumer said something similar in 2007--the year before a Presidential election. The Biden-Schumer rule pertains only to Presidential elections, not midterm election years.

It is important to let the American people decide who should choose a nominee for a Supreme Court vacancy. That is why I waited until after the 2016 Presidential election to hold hearings for a Supreme Court nominee. But the individual who selects nominees--the President of the United States--is not on the ballot in midterm elections. The rule simply doesn't apply during a midterm election, and that is this year.

Another losing talking point is that we shouldn't confirm any nominee while Robert Mueller's investigation is ongoing. And who knows when that is going to end. This argument is again inconsistent with the historical precedent. Look at what President Clinton was involved in-- an investigation of that President over Whitewater. At the same time, Justice Breyer was appointed to the Supreme Court--at a time when the independent counsel was doing that investigation. At the time, his documents were under a grand jury subpoena. What other constitutional powers do the proponents of this argument believe that the President should surrender simply because of an investigation?

This is obstruction masquerading as silliness. What drives this preemptive obstruction, you might ask. It is liberal outside groups' stated fear that the President's nominee will vote to invalidate the Affordable Care Act or overturn Roe v. Wade. Well, the same five- Justice majority who preserved the Affordable Care Act is still on the Court. Justice Kennedy voted to strike it down. Replacing him with a like-minded Justice would not change the outcome. We hear the same thing about Roe v. Wade every time there is a Supreme Court vacancy. It was a big deal when Sandra Day O'Connor was appointed to the Court 37 years ago. Yet Roe v. Wade is still the law of the land.

It is pretty clear that Justices have a way of surprising us. Who could have predicted that Justice Scalia would strike down a ban on flag-burning? It is a fool's errand to try to predict how a Justice will rule on some hypothetical future case.

This regular uproar about Roe v. Wade shows the difference between how many Democrats and Republicans view the courts.

Liberal outside groups and many Democrats have a litmus test. They seem to be very results-oriented and focus on policy outcomes of judicial decisions. They expect--they even demand--their judges to rule in favor of their preferred policies. Liberal outside groups and their allies simply want judges to be politicians hiding under robes. That is why Senate Democrats were so blatant in changing Senate rules so that they could stack the DC Circuit Court of Appeals. Former Democratic leader Harry Reid made no bones about making sure there were enough DC Circuit judges to protect the Obama administration's policies on regulations.

Republicans, on the other hand, want judges who will rule according to the law and leave policymaking to elected representatives, where the Constitution prefers and demands that it be.

I don't want judges who decide cases based upon whether the results are liberal or conservative. Judges should rule according to the law, no matter what their views are on policy outcomes. Judge Gorsuch recently said that judges wear ``robes, not capes.'' I agree with that assessment.

Liberal outside groups and their allies want judges who will decide cases with liberal policy results. Republicans expect judges to leave their policy aside when deciding a case. That is the fundamental difference that will become crystal clear to the American people during this confirmation debate.

The Senate Judiciary Committee will hold a hearing for the nominee in the coming weeks. Exactly when, I don't know, and I shouldn't know at this point. I want to emphasize a few things, though. One, it is inappropriate for Senators to ask the nominee how he or she would rule on certain cases sometime in the near future or 10 years from now. Two, it is inappropriate to ask the nominee about his or her personal views on the merits of Supreme Court precedent.

The bottom line is that Senators should not try to extract assurances from nominees on how they will decide particular cases in exchange for a confirmation vote because how do you know down the road--1 year or 2 years or 15 years--what the case might be at that particular time?

Justice Ginsburg made it pretty simple for everybody. During her confirmation hearing in the early 1990s, she set the standard, promising, in her words, ``no hints, no forecasts, no previews.'' She said this in a further long quote:

It would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.

This standard was reaffirmed by every Supreme Court nominee since then. For the last 25 or 26 years, the Ginsburg rule has been what is followed by other nominees for the Supreme Court. Justice Kagan said this about Roe v. Wade, following the Ginsburg rule:

I do not believe it would be appropriate for me to comment on the merits of Roe v. Wade other than to say that it is settled law entitled to precedential weight. The application of Roe to future cases, and even its continued validity, are issues likely to come before the Court in the future.

I expect this nominee announced tonight to likewise follow the Ginsburg standard. I will ask the nominee how he or she views the law and a Justice's role on the Bench. I will not presume to know how a nominee will rule on any case that might come before the Court today, tomorrow, or 10 years from now. I certainly will not be basing my vote on whether I think I will agree with the majority of his or her decisions.

The press has reported that the President has focused on six or seven potential nominees for this vacancy. Each one is well qualified and would make an outstanding Supreme Court Justice.

The nominee will get a full and fair hearing. Under my watch, the Senate Judiciary Committee will never be a rubberstamp. Several recent nominees to lower courts learned that the hard way.

The process will be fair and will be transparent, as much as I can make it. That has been my approach during my nearly 38 years in the Senate--and all of those 38 years on the Senate Judiciary Committee-- and I will not change that. The American people must be confident that this Senate has fulfilled its constitutional duty of very independently vetting this nominee before we confirm a Justice to a lifetime appointment on the highest Court in the land.

I eagerly await the President's announcement this evening. I look forward to hearing from the nominee when he or she appears before the Senate Judiciary Committee.

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