Chuck Grassley (R-Iowa) is chairman of the Senate Judiciary Committee. He has a reputation for being fair-minded. Al Franken (D-Minn.) is a Democratic member of the committee who balked at the nomination of a Minnesota judge to a federal appeals court.
Since the issue was procedural, Grassley thought he could win Franken over. But it was harder than he’d figured on. To get a hearing before the committee, a nominee’s home state senators must send in so-called blue slips. The other senator, Democrat Amy Klobuchar, had done so. Franken hadn’t.
He had concerns about the nominee, 43-year-old David Stras. Franken was leery of Stras’s background as a law clerk to Clarence Thomas, the conservative Supreme Court justice. And he insisted he didn’t have adequate “consultation” with the White House before Stras was selected. The president picks appeals court nominees.
Grassley was not impressed. The complaints were ideological or political, he felt, and thus not legitimate reasons for withholding a blue slip. Besides, the committee had documented all the time the White House had given to consultation with Franken.
But Franken wouldn’t yield. Grassley had talked to him three or four times about Stras, never angrily. Then on September 16, he personally delivered to Franken a three-page, handwritten letter attached to information about the history of blue slips and Stras. Grassley had written it at his Iowa farm on paper torn from a leftover spiral notebook. It didn’t change Franken’s mind.
In the end, Grassley scheduled a hearing for Stras last week over the objections of Franken and Democrats. There had been fears among Republicans and conservatives that Grassley might shrink from making such a strong move. Absent a hearing, the Stras nomination would have died. A single senator would have kept it from reaching the Senate floor. But Grassley was never going to let that happen.
As early as last spring, he talked on C-SPAN about blue slips as a courtesy, not a rule. And in a Senate speech on November 13, he said he would “honor the blue-slip courtesy, but there have always been exceptions.” Stras became one.
Grassley didn’t cite Franken by name. That turned out to be the real courtesy. “But a senator can’t use a blue slip to block a nominee simply because he or she doesn’t like the nominee’s politics or ideology [or] because it’s not the person the senator would’ve picked,” he said. “The president gets to nominate judges.”
That’s true, but Grassley is playing a critical role in the judicial revolution that’s filling the federal courts with conservatives. It’s the biggest Republican success of the Trump era. Grassley is committed to making it bigger.
“These are the kind of people I want,” he told me. “You know the words we all use—strict constructionist, lack of judicial activism, having a temperament that leaves their own personal views out of it, looking at the facts of the case and the law and making your own decision just based on that.”
Grassley, 84, is one of a handful of key players advancing the judicial makeover after eight years of President Obama’s liberal court-packing. The others: President Trump, White House legal counsel Don McGahn, Senate majority leader Mitch McConnell, and Leonard Leo of the Federalist Society, an expert on the judiciary.
After nearly 37 years in the Senate, Grassley operates in his own unique way. He deals personally with Democratic senators to get their blue slips. He loves process because it bolsters the Senate’s constitutional role to advise and consent on judges. He’s fine with long workweeks and endless debates.
Grassley has been Judiciary chairman since Republicans took back the Senate in 2015. But it was Trump’s election that elevated Grassley’s position to strategic significance. He’s made the most of it.
Amy Barrett, a Notre Dame law professor and a Trump appeals court nominee, produced the first struggle over a blue slip. Senator Joe Donnelly (D-Ind.) procrastinated for weeks, perhaps because Barrett, 45, a law clerk for Justice Antonin Scalia, was seen as a potential Supreme Court nominee. But Grassley was persistent and got the blue slip. After Barrett was confirmed, Trump instantly added her name to his list of possible high court nominees.
Joan Larsen’s nomination took more of Grassley’s time and effort. The two Democratic senators from Michigan, Debbie Stabenow and Gary Peters, held the slips back. Larsen had worked at the Justice Department’s office of legal counsel, and the senators demanded to see documents from the Bush-era debates about torture in the war on terror.
Justice officials refused. The documents, while not classified, are closely held. Grassley had to intervene at Justice to provide evidence Larsen had not been involved in the policy on torture.
Senator Michael Bennet (D-Colo.) was downright elusive. A Republican aide said he “ran and hid” to avoid endorsing Supreme Court nominee Neil Gorsuch, a fellow Coloradan. In pursuit of Bennet’s blue slip for appeals court nominee Allison Eid, Grassley tried and failed to get a meeting with Bennet in his office. It took Grassley close to three months to get it.
Grassley met with Senator Bob Casey (D-Pa.) in his office to get the blue slip for Stephanos Bibas, an appeals court nominee. Senator Heidi Heitkamp (D-N.D.) was an exception. She delivered her blue slip for Ralph Erickson, another appeals court nominee, without being asked.
After all this, Grassley’s extraordinary effort to secure blue slips is far from over. Nine appeals court judges have been confirmed and nine more await votes on the Senate floor.
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There was a precursor to the blue-slips battle, and Grassley was in the middle of it as well. On February 13, 2016, Justice Antonin Scalia died in his sleep. Within hours, Sen. McConnell announced that the Senate would not confirm a replacement until after the November election. This meant Grassley had to agree not to hold hearings when President Obama nominated Merrick Garland to succeed Scalia.
For Grassley, it was the beginning of a year in which he was harshly criticized by Democrats and subjected to cries of “do your job.” Grassley also was running for reelection in 2016.
Within days, the New York Times was covering his appearance at a town hall in Dewitt, Iowa, where no one, not even the Republicans, seemed to like him. He faced “sometimes aggressive questioning,” the Times said.
“Next to facing the Tea Party people during the Obama administration, this was the most difficult election that I ever had,” Grassley says. “And the reason I say it’s not quite as bad as the Tea Party is because they were my conservative friends.”
The Iowa press attacked him. Billboards were plastered with messages such as “Grassley we’re ashamed of you.” On another billboard, “supposedly three Republicans had their faces . . . saying ‘we’ve always voted for you but we’re ashamed of you,’ ” Grassley recalls.
His chief abuser, however, was Senate minority leader Harry Reid. “Every speech for four or five months was ‘I’m not the same old Chuck Grassley’ and ‘such a disappointment I am.’ ” And Reid kept a plaque on the Senate floor with hostile quotes from the Des Moines Register.
That was the mild stuff. Reid is nasty. He’s famous for claiming during the 2012 presidential race that Mitt Romney hadn’t paid taxes for years. When that was shown to be untrue, he refused to apologize or retract the accusation. He retired in 2016.
As much as Reid disliked McConnell, he seemed to loathe Grassley even more. He raised the stakes, accusing Grassley of “failing dramatically, setting all records of failure,” and committing “record-setting obstruction.”
And then there was this from Reid: “Senator Grassley has surrendered every pretense of independence and let the Republican leader annex the Judiciary Committee into a narrow, partisan mission of obstruction and gridlock—so partisan, in fact, that the senior senator from Iowa won’t respond to a personal invitation from the president inviting him to the White House to discuss the vacancy.”
Grassley endured, but his poll numbers drooped. Was he fearful of losing his seat? “Absolutely,” he says. “In April, May, June, July, August. When you hover around 50 percent, you’ve never been that low in 25 years, it worries you.” He wound up winning a seventh term, 60 to 36 percent. “It cost me 7 percentage points because I would normally win by 66 or 67.”
At last week’s hearing, Democrats were unhappy. Having to deal with two appeals court nominees at a time was a strain. Franken was upset because “the blue slip exists for a reason,” but his decision to withhold his failed to bar Stras from getting a hearing.
Their whining was familiar. Senators wandered in and out. No one sounded angry. The atmosphere inside the hearing room was far milder than outside in Washington. Grassley is good at defusing tension.
With his eye on the federal judiciary and its lifetime appointments, Grassley declared last year that the election “is not about the next four years,” but about “the next forty years.” That was his working principle then—and now.
Fred Barnes is an executive editor at The Weekly Standard.
