Mark Kende

A group is running television advertisements in Iowa on behalf of Sen. Chuck Grassley saying that he wants “the people” to select the next U.S. Supreme Court justice to replace the Honorable Antonin Scalia, via this year’s presidential election. Grassley justifies refusing to hold hearings as chair of the Senate Judiciary Committee on President Obama’s distinguished nominee, U.S. Court of Appeals Judge Merrick Garland, for this reason even though Garland has received support from distinguished Republicans such as Ken Starr and Sen. Orrin Hatch. Yet the Grassley advertisement misinforms Iowans.

The U.S. Constitution specifically authorizes the president, not “the people,” to nominate Supreme Court justices. The Senate must give its “advice and consent,” but it’s the president’s choice. And by the way, President Obama was elected by “the people” through our electoral college for a full four-year term, not three years.

Grassley assumes Iowans will not notice the misinformation campaign because he is making his position sound very democratic and populist. Yet it’s just incorrect. And Senator Grassley is not following his own frequent statements about strict allegiance to the text of the Constitution in his advertisements. Moreover, polls show that most people vote for a presidential candidate based on a number of reasons, including the Supreme Court. Other people worry about the economy or terrorism. So his statements that the presidential election is a referendum on the Supreme Court is not accurate.

Some Republican leaders, including Senator Grassley, initially said that no vote should be held because Supreme Court confirmation decisions historically were not made in presidential election years. Yet Grassley had no problem when a Democratic-controlled Senate confirmed Republican presidential court nominee Justice Anthony Kennedy in 1988 during an election year.

What Senator Grassley is doing is taking our sacred “rule of law” and engaging in a political power play, and probably using “out-of-state” assistance to put these ads together. More fundamentally, he is blocking the full functioning of a co-equal branch of the federal government. Iowans deserve better from their senator. Iowans should contact Senator Grassley’s office and insist that he proceed with professional Senate confirmation hearings, rather than bring truth to the commonly held view that this is a “do nothing” Congress.

Mark S. Kende is James Madison Chair Professor in Constitutional Law and director of the Drake University Constitutional Law Center. Contact: mark.kende@drake.edu