Grassley: Make our courts as dysfunctional as Congress

U.S. Sen. Charles Grassley (R-Iowa) — in his efforts to make the judiciary as dysfunctional as Congress — does not mind agreeing with Democrats President Obama or Vice President Biden when necessary to cover his butt from the backlash to his anti-court campaign.

Nor, unfortunately, does Grassley mind disagreeing with founding father James Madison or with Edmund Burke, the Brit often characterized as the founder of conservative politics.

Grassley’s penchant for such contortions came to mind with his April 11 op-ed piece in The Des Moines Register. He rationalized his refusal, as chair of the Senate Judiciary Committee, to consider the nomination of Judge Merrick Garland to the U.S. Supreme Court.  In her April 17 Register column, Kathie Obradovich charitably characterized Grassley’s arguments as “mostly nonsense.”

The nine-member court can function just as well with eight justices, Grassley advised — oblivious to the impact the vacancy is having upon decisions and oblivious to the fact that many think Congress could function even better with, say, 100 fewer Representatives and Senators!

Grassley’s court boycott ranks with the irresponsibility of his 2009 comments about rumored “death panels” under the Affordable Healthcare Act.

Grassley then told a town hall in Winterset,  “You have every right to fear. You shouldn’t have…a government-run plan to decide when to pull the plug on grandma.”

That worry, first voiced by the authoritative Sarah Palin, was dubbed the “Lie of the Year” by the editors of PolitiFact.com, the fact-checking website of the St. Petersburg Times; other non-partisan fact checkers bestowed similar “honors.” Grassley defended his “pull the plug” statement by saying he was merely responding to misplaced concerns voiced at the town hall. Further, to Grassley’s way of thinking, President Obama had said much the same thing — except that Obama was talking about voluntary end-of-life counseling, which was included in the GOP-supported Medicare prescription drug bill of 2003.

Fast forward to 2016 and Grassley says his refusal to consider the Supreme Court nomination is just the same as what then Sen. Joe Biden advised in 1992.  But Grassley and partisan film clips twist Biden’s comments. Grassley ignores the fact there were no Supreme Court openings in 1992 and that Biden set modest conditions for considering an appointment should a vacancy occur. During 1992 the judiciary committee, with Biden as chair, routinely confirmed President George H.W. Bush’s nominations to other federal courts.

Madison and Burke? That’s where one confronts Grassley’s argument that the 2016 election is the best determinant of who should serve on the Supreme Court. Madison and Burke would cringe.

For his part, Burke (1729-1797) wrote, “…the majority of citizens is capable of exercising the most cruel oppressions upon the minority,” and that a government would be unaccountable if it decreed that its oppression was serving the will of the people.

Madison (1751-1836) and other founding fathers had similar concerns. For Madison it was with “factions,” which he defined in the Federalist Papers as “citizens adverse to the rights of other citizens or to the permanent and aggregate interests of the community.” Such people are “much more disposed to vex and oppress each other than to cooperate for their common good…”

So Madison gave the new nation a system of checks and balances. Not only were branches of government held in check, but so were the citizens as a guard against the tyranny of the majority. Likewise in representative government, Burke told his constituents, “Your representative owes you not his industry only but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

An epilogue from Bob Hunter, who taught constitutional law at Drake’s Law School:

“In Grassley’s America the issues of integrated schools should have been left to the voters in 1954; integrated restaurants, hotels, public transit and voting rights on the ballots in 1964 and 1965; interracial marriage a campaign issue in 1967. In Iowa the Varnum gay rights case showed what a nuisance courts can be. Perhaps Grassley can do his part to realize Burke’s and Madison’s fears. Nice legacy.” CV

Herb Strentz is a retired administrator and professor in the Drake School of Journalism and Mass Communication and writes occasional columns for Cityview.