Joni Ernst, Republicans, and Supreme Court Hypocrisy

Sen. Joni Ernst (R-IA)

There are times when I can see through the spin of what a politician says, and there are times when it flummoxes me.  The latter was true today when it came to an interview that Joni Ernst did where she was asked about Supreme Court nominations.  Despite President Trump being extremely unpopular, and his numbers breaching below the 40% approval rating in some public opinion polls, if there was an opening on the Supreme Court tomorrow, there is no doubt in my mind that the Republican Party would confirm his appointment.  They control the Senate, and though it would be rank hypocrisy (Merrick Garland wasn't given a confirmation hearing by Ernst and her Republican colleagues in 2016 "because the American people needed to decide" in March of an election year, and we're not far off from August, so this would be absurd double speak), it wouldn't stun me if they did this.  But Ernst confirming this, and stating that even if President Trump was defeated or if she was defeated, she'd still vote to confirm during a lame duck session might be something you say in a closed room or a donor luncheon, but it's not the sort of thing you say in an interview that will be seen by the general populace, as it basically says to the people of America & Iowa "I don't give a crap what you think-I will do what I want."

This might fly for Mitch McConnell in ruby-red Kentucky, but Joni Ernst has shown in the past month that she has truly terrible political instincts in a tough political fight.  Ernst won in a Republican landslide midterm against a terrible candidate for an open seat.  Yes, she had a memorable campaign ad that conferred on her a bit of shimmer in terms of political future, but her public polling shows that she's under-performing Donald Trump, who has lost serious ground in Iowa, enough so that if Ernst is under-performing him, she's losing, and indeed Ernst's opponent Theresa Greenfield has led her in every single public poll since the beginning of June.  Ernst has made a few high-profile gaffes in her career, but this one might take the cake-it's an easy statement to turn into an attack ad, as Ernst says the only reason they could confirm is because there's a Republican president, impressing that she wouldn't get anything done if there was a Democratic president.  People might not like compromise in practice, but independents like it in theory, and running against compromise is a bad tactic when you're down and trying to win over voters.  To use baseball parlance, Ernst just gave an easy run to her opponent when she's already down and we're heading into the bottom of the sixth.

I could devote a whole column to Ernst's comments, but instead I want to focus on something else-whether or not there's a lot of precedent for two things she said.  Ernst insinuated that "a Republican President and Republican Senate will confirm a justice, even in a lame duck session," so my questions are twofold-when was the last time that a Republican Senate confirmed a Democratic president's Supreme Court nominee, and has either party confirmed the Supreme Court nominee of a president who has been defeated during a lame duck session?

The first question is shockingly harder to find than you'd think.  Prior to the hearings of Robert Bork and Clarence Thomas, Supreme Court hearings were relatively routine affairs, where nominees got huge amounts of support.  Antonin Scalia and Ruth Bader Ginsburg, the two most famous partisans on the court in the past 40 years, were confirmed with over 95 votes each in the Senate, despite their partisan proclivities being obvious going into the nomination process.  And yet, the Republican Party has actually not confirmed a Democratic President's in over 100 years.

Chief Justice Merrick Garland

This is not necessarily the Republicans fault (though it kind of is when you remember that this fact wouldn't work if they'd given Merrick Garland a vote like they should have, so it is partially their fault).  President Obama, Clinton, Truman, and Wilson had Democratic Senates when they had their confirmation hearings.  The Democratic Party held the Senate the entire presidencies of Presidents Kennedy, Johnson, and Franklin Roosevelt.  President Carter never made a Supreme Court appointment.  As a result, you have to go back to 1896, when Rufus Peckham was nominated by President Cleveland to find the last time this happened.  While Republicans have voted for Democratic nominees, certainly, since then (Susan Collins & Lindsey Graham both voted for Elena Kagan, for example), they've never done so when they had the majority and could stop the nomination in theory.

While Garland was the only candidate that could have gotten a formal vote during that time frame, it's worth remembering that multiple Republican presidents had Supreme Court nominees confirmed by a Democratic-held Senate in the years since.  President Eisenhower had four, as did President Nixon.  President Bush Sr. had two, while Presidents Reagan & Ford both had one.  The point here is that what Ernst said is kind of right-there is virtually no precedence for the Republican Party to let a Supreme Court nominee from a Democratic President get a stand-up vote, even though the expectation has been that a Democratic Senate give credit to a Republican President's nominee.

The second part of this is around the lame duck session.  This is not common-obviously it would require an opening to come up in an election year, and more than likely late in an election year.  Obviously while Barack Obama was a lame duck president, had there been a vote for Garland in May or June of 2016, there wouldn't have been a lame duck Congress, and certainly there would have been no way of knowing whether or not the Democrats would hold the White House in November.

Before Antonin Scalia died, the last time an opening occurred in an election year was Sherman Minton in 1956, as Minton announced his resignation just weeks before the election, but there was still enough time for President Eisenhower to get his nominee in, and neither the White House nor the Senate changed hands in 1956 so we don't know what might have happened if Eisenhower had lost reelection.  This was the case for other Supreme Court vacancies that occurred in presidential election years (Joseph Rucker Lamar, Charles Evans Hughes, Oliver Wendell Holmes, Jr., etc)-the president always got the right to appoint someone even though he or his party might soon lose the election.

President Benjamin Harrison (R-IN)

Lame duck session openings are rare, and when they did happen (the resignation of James McReynolds, for example), they happened when the party in power had not changed hands during the last presidential election, so there was no "lame duck president" that was trying to get a nomination in before the buzzer.

So again, you have to go back almost 100 years to find a situation similar to what Ernst describes.  In 1893, Supreme Court Justice Lucius Lamar died on January 23.  At the time, the Republican Party had lost the presidential election-their incumbent, Benjamin Harrison, had been defeated by Grover Cleveland (weirdly, similar to Donald Trump, Harrison had not won the popular vote), but Harrison was still in office as presidential inaugurations then were held in March.  Harrison, who it's worth noting did have a Republican Senate that was also a lame duck, nominated a Southern Democrat to succeed Lamar, and the Republican Senate confirmed him just a couple of weeks before Cleveland took office.  Therefore, while obviously politics has changed a lot since then, there is precedence for a Republican president ignoring the will of the people and taking a Supreme Court opening during a lame duck session.