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Q: What is the Senate’s role to fill a vacancy on the U.S. Supreme Court?


A: Article 2, Section 2, Clause 2 of the U.S. Constitution says the President, by and with the Advice and Consent of the Senate, shall nominate judges to the U.S. Supreme Court. That means the president has the constitutional duty to make a nomination when a vacancy takes place. And the U.S. Senate has the constitutional authority to either grant or withhold consent on the nominee. The Senate historically confirms nominations made during election years when the White House and the Senate are held by the same party, as is the case today. Alternatively, the Senate historically does not confirm nominees when the White House and Senate are held by opposing parties, as was the case in 2016.  This historical precedent has applied to presidents of any party throughout our nation’s history.


Throughout my service in the U.S. Senate, 14 justices have been confirmed to serve lifetime appointments to the highest court in the land, including four women. In fact, the first nominee for whom I cast my vote was Justice Sandra Day O’Connor, the first woman to serve on the Supreme Court. On Sept. 18, 2020, Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court, passed away after serving 40 consecutive years on the federal bench, including 13 years on the U.S. Court of Appeals for the D.C. Circuit and 27 years on the U.S. Supreme Court. Justice Ginsburg has inspired generations of Americans to pursue their dreams. Her legacy for equality and justice will endure for generations to come.


During my time representing Iowans in the U.S. Senate, I’ve always taken seriously my oath to uphold the Constitution and exercise the authorities vested in my elected office. Handling vacancies on the U.S. Supreme Court are exceptionally important to our constitutional republic. Nominees are considered for unelected, lifetime appointments. The framers intentionally divided this responsibility between the executive and legislative branches to provide a check on the federal judiciary. The separation of powers gives the Senate authority to determine how to proceed with court vacancies. Our system of checks and balances is instrumental to limited government, empowering self-government “of, by and for the people.” 


Q: Is your position on filling a Supreme Court vacancy different in 2016 than 2020?


A: In 2016, Justice Antonin Scalia died in a presidential election year. Justice Ginsburg’s passing in 2020 creates another vacancy during a presidential election year. It’s important to put these vacancies in historical context. As I said in 2016, you’d have to go back to 1888 to find an election year nominee who was nominated and confirmed under divided government.


Throughout our nation’s history, presidents have submitted 15 nominations during presidential election years to fill Supreme Court vacancies arising in the same year. Of the 15, seven occurred during a divided government, in which the presidency and the Senate were held by opposing political parties. In those seven instances, five nominees were rejected. The remaining eight of the 15 nominations took place when voters had placed the same political party in charge of the White House and the Senate. Of those, seven nominees were confirmed, including during the presidency of Iowa’s native son President Herbert Hoover in 1932.


In 2016, when I served as then-chairman of the Senate Judiciary Committee, we had divided government between the White House and the Senate. It was a presidential election year during a divided government; the Senate Majority and I, as chairman of the committee, followed historical precedent to give voters the opportunity to use their voice at the ballot box and provide certainty with respect to the direction of the federal judiciary. Remember, the Scalia vacancy occurred during the final months of an outgoing Democratic president and when Republicans held the Senate Majority. According to exit polls, the vacancy became a central issue to voters in the 2016 election. President Trump won the 2016 election and voters expanded the Republican Senate Majority again in 2018. Justice Ginsburg’s passing creates another presidential election-year vacancy. The difference is this time, we have unified government between the White House and the Senate. I am no longer chairman of the Senate Judiciary Committee and no longer have the authority to decide if the Senate should hold nomination hearings or wait until after the election. However, the current chairman and Senate Majority Leader have made the decision to move forward. Although I’m no longer chairman, I’m still a member of the Senate Judiciary Committee. It’s my responsibility to represent Iowans during this consequential period in history. I will consider the president’s nominee based on her merits and qualifications, just as I always have during confirmation hearings. I haven’t missed a vote in the U.S. Senate since 1993, in fact, I hold the longest consecutive voting streak in history. By that measure, when a nominee to the Supreme Court comes up for a vote in the United States Senate, I will cast my vote on behalf of Iowans. 

Author: Charles Grassley

Chuck Grassley of New Hartford has represented Iowa in the United States Senate since 1980.