Guest view: Grassley stands between rule of law and legal bedlam
The Quad-City Times
Steven Calabresi
June 26, 2016
Recently, Eric Berger, a University of Nebraska law school administrator and professor, criticized U.S. Sen. 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 Sen. Grassley’s conduct has been anything less than exemplary is not.
Sen. 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 Sen. Grassley holds now, 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. Sen. 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.
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