Profiles in hypocrisy: Grassley, Ernst sidestep previous positions on Supreme Court nominees

Almost immediately after the death of U.S. Supreme Court Justice Ruth Bader Ginsburg, President Donald Trump said he would fill her vacant seat “without delay.” 

The president has clear constitutional authority to nominate a Supreme Court justice. That authority remains intact weeks before a general election.

But Congress has clear authority here, too. Though Trump seems to frequently forget this country has three branches of government, a court nominee needs consent of the U.S. Senate.

Assuming all members of the Democratic caucus oppose Trump’s pick, it would take only four Republican defections to block a confirmation. 

On Saturday, Susan Collins, a Maine Republican, said the Senate should not vote until after the Nov. 3 election —  with a nominee chosen by the person who wins the presidency. On Sunday, GOP Sen. Lisa Murkowski of Alaska reiterated her opposition to voting for a nominee before Election Day. 

“For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election,” she said in a written statement. “Sadly, what was then hypothetical is now our reality, but my position has not changed.” 

Sen. Mitt Romney of Utah should also be among the Republicans who refuse to ram through the nomination of a justice who could have a say in not only immigration policy, civil rights and the health reform law, but the ultimate outcome of a contested general election. 

Though Sen. Joni Ernst has recently changed her tune, in a July 2018 meeting with the Des Moines Register editorial board, she said it would be "absolutely fair" to expect Trump in 2020 to go through an election cycle before making a new court appointment.

"So come 2020, if there's an opening, I'm sure you'll remind me," she laughed. 

It's 2020. She can consider herself reminded.

But it was Sen. Chuck Grassley who was in the bigger spotlight in these first days after Ginsburg’s death. Iowans wondered if he would be consistent with his own past actions on this issue. 

Now we know — he says that he will consider a nominee and that he's being consistent.

This is worth unpacking.

In 2016, Grassley, as chairman of the Senate Judiciary Committee, drew national attention and much ire for refusing to hold confirmation hearings for President Barack Obama’s Supreme Court nominee, Merrick Garland. 

Garland was nominated to replace Justice Antonin Scalia, who died in February of that year. Obama made his appointment shortly after, but Grassley as the committee chair said the decision to fill the vacancy should be made by whoever was elected president in November — nine months after the seat became vacant. 

“It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice," Grassley said.  

From news:

• Here's how Iowa's Republican US senators said they would handle an election-year Supreme Court vacancy
• 3 Iowans are on President Trump's list of potential Supreme Court nominees
• An Indianola man corresponded with the late Supreme Court Justice Ruth Bader Ginsburg for years on their shared love for opera

This editorial board took Grassley and Republicans to task for political antics intended to deny Obama a justice nomination. They cleared the way for Trump to appoint conservative Justice Neil Gorsuch in early 2017.

Grassley said Monday that "while there was ambiguity about the American people’s will for the direction of the Supreme Court in 2016 under a divided government, there is no such ambiguity in 2020."  

Grassley should have owned his previous words and actions.

If Iowa’s senior senator did not think a presidential nominee should be confirmed months before the 2016 general election, how can he possibly justify voting on a nominee weeks before the 2020 general election? His statements were plain in 2016. He mentioned then that the Senate and White House were controlled by different parties (unlike now), but it was not the basis of the choice to freeze out Garland. 

And he said nothing of an exception if the majority party picked up seats in the midterm election (thanks mostly to the vagaries of the six-year terms for senators), or if the president was in his first term instead of his second, or if the minority party was mean during confirmation hearings two years prior, or if the moon is in the seventh house. 

Earlier this year, after Ginsburg announced she was again undergoing chemotherapy treatments, Grassley told reporters the decision on proceeding with nomination hearings is now up to the current head of the Judiciary Committee, Lindsey Graham. 

“I would have to tell him that I wouldn’t have a hearing,” Grassley said. “And then whether or not the nominee would come up on the floor before the election would be Chairman McConnell’s decision, and you would have to ask him what he’s going to do in that regard.”

He repeated Monday that he was following Graham's and McConnell's lead.

Make no mistake, Grassley has plenty of power on this issue. He has the power to discourage other Republicans from proceeding. He has the power of his own vote. And he has the power to decide whether he will be remembered as consistent in his governing philosophy on Supreme Court nominees or as a hypocrite.