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Republican Joni Ernst Says Senate Should Absolutely Confirm a Lame Duck Supreme Court Nominee While Trump Is President

Sen. Joni Ernst, an Iowa Republican, says the U.S. Senate should rush to appoint a new justice to the U.S. Supreme Court in a November or December “lame duck” session of Congress—even if President Donald Trump loses the election, and even if Senate Republicans lose control of that chamber of the legislature.

Ernst made the comment on Iowa Press, a broadcast about politics produced by Iowa PBS.

The host of the broadcast, David Yepsen, said the show in question airs tonight, but the episode is already online.

“We have a Republican-held Senate and a Republican president . . . and so I don’t see that there would be any difference between the president and the senate on a selection of a supreme court justice,” Ernst said of the rationale for the move.

The questions were important because of the way Senate Republicans prevented then-President Barack Obama from moving forward with the nomination of Merrick Garland to the U.S. Supreme Court in 2016. Obama nominated Garland on March 16, 2016, well before the November election that year and well before the subsequent lame duck session of Congress. Senate Majority Leader Mitch McConnell refused to move forward with Garland’s nomination with the famous words that “the American people should have a say in the court’s direction.”

“It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent,” McConnell said back then.

He later bragged that one of his “proudest moments” was when he “looked Barack Obama in the eye” and told him “you will not fill the Supreme Court vacancy.”

And, of course, Obama didn’t.

Ernst was one of those who championed McConnell’s thought process in 2016.  “The American people deserve a voice in the SCOTUS debate,” Ernst tweeted on March 16, 2016, the day Garland was nominated.

And, there’s also a press release — also dated March 16, 2016 — in which Ernst decried Obama’s “failed policies and endless power grabs.”

WASHINGTON, D.C. – U.S. Senator Joni Ernst (R-IA) released the following statement regarding President Obama’s hand-picked nomination to the United States Supreme Court:

“In the midst of a critical election, the American people deserve to have a say in this important decision that will impact the course of our country for years to come.

“This is not about any particular nominee; rather this is about giving the American people a voice. Folks are frustrated with Washington, and are fed up with President Obama’s failed policies and endless power grabs. We saw this frustration embodied in 2014 when voters made their voices heard and elected a Republican majority in the Senate.

“My Democratic colleagues have noted in previous years that nowhere in the Constitution does it state that the Senate must vote on the president’s nominee to the Supreme Court. I support Senator [Chuck] Grassley’s decision to exercise the Senate’s constitutional authority to withhold consent to a Supreme Court nomination until the next president is sworn in.

“We must wait to see what the people say this November, and then our next president will put forward a nominee.”

On Iowa Press, Ernst articulated a distinction between a lame duck nomination process in 2020 and what happened to Merrick Garland in 2016.

“That was a different situation,” Ernst said when asked to explain it.  That was “a Republican-held Senate with a Democratic president — and so we were divided on who that selection would be. This is a different scenario where you have a Republican president and a Republican senate.  There’s likely not to be a lot of disagreement when it comes to the selection of a justice.”

It bears no resemblance to her rationale for delaying the Merrick Garland nomination in 2016. Then, Ernst said, “the American people deserve to have a say” and that “our next president will put forward a nominee.” She said nothing in 2016 about a party split between the White House and the Senate.

Ernst was immediately (but politely) dragged by the panel of reporters who were there to question her.

“Even in a lame duck session?” asked Yepsen, the host.

“It’s very different that what we’ve seen in the past,” Ernst said, digging in. “We have the same party that is the majority in the senate and the same party that is in the White House.”

“If President Trump is defeated, if Republicans lose control of the senate, would you still support doing this prior to January?” Yepsen asked, adding that Justice Ruth Bader Ginsburg announced that she was again undergoing treatment for cancer.

“Well, one, I wish nothing but the best of health for Ruth Bader Ginsburg. I think we all do, and I’ll be praying for her,” Ernst said. “And it is a lame duck session. I would support going ahead with any hearings that we might have and, if it comes to an appointment prior to the end of the year, I would be supportive of that. We would need to have some very serious discussion about that, but again, it is — even though it’s a lame duck session, it is still a Republican president and still a Republican senate.”

What’s remarkable about Ernst’s rationale is that it again fails to account for the hypothetical poised to her — that Republicans may lose control of the Senate; that the 117th Congress begins Jan. 3, 2021; and that Donald Trump remains in the White House until at least Jan. 20, 2021, the date the next elected president takes office. That may be Donald Trump or it may be Joe Biden. In other words, there may not only be a lame duck Congress but also, hypothetically, discord between the majority of the Senate and the holder of the Oval Office.

Legal observers quickly called out the hypocrisy:

Iowa Radio, whose news director was on the panel, noted that Sen. Chuck Grassley (R-Iowa), who refused to hold committee hearings for Garland, said that should a Supreme Court vacancy occur at this point or later in the 2020 election cycle, any selection should wait until after the election — just like it did in 2016.

Ernst apparently does not agree with Grassley.

[featured by Kevin Dietsch/Pool/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of The Daily Debrief on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.