GOP fractured over filling Supreme Court vacancies in 2020

Early lines of division are opening up among top Senate Republicans over a potential 2020 Supreme Court fight.

Days after the Senate confirmed Brett KavanaughBrett Michael KavanaughPlanned Parenthood provides health care for millions of women in the US — we can't defund them Ruth Bader Ginsburg biopic gets DC red carpet premiere Supreme Court not for life? Beware perils to its independence MORE to the court, key GOP lawmakers are giving different answers over whether they’d fill a Supreme Court seat if there is an opening in 2020, the next presidential election year.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGOP-controlled Senate breaks with Trump on Saudi vote Overnight Defense: Senate moves toward vote on bill ending support for Saudi war | House GOP blocks Yemen war votes for rest of year | Trump throws uncertainty into Pentagon budget | Key Dem to leave transgender troop ban to courts Senate moves toward vote on ending support for Saudi-led war MORE (R-Ky.) refused to rule out taking up a nomination in 2020, even though Republicans blocked Merrick GarlandMerrick Brian GarlandSupreme Court not for life? Beware perils to its independence Mellman: Enemies of democracy Debate over term limits for Supreme Court gains new life MORE, former President Obama’s nominee, from getting a hearing or a vote in the presidential election year of 2016.

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McConnell, suggesting 2020 could be different, pointed out that at the time the Senate and White House were controlled by different parties.

“You have to go back to 1880s to find the last time a Senate controlled by a party different from the president filled a vacancy on the Supreme Court that was created in the middle of a presidential election year,” McConnell said on Fox News. “That's been the history.”

Asked directly if he would allow a nominee to be confirmed in 2020, McConnell sidestepped the question, saying senators would wait and “see if there's a vacancy.”

He reiterated his point to reporters in Louisville, Ky., on Monday and during an interview with The Associated Press Wednesday that was streamed live on Facebook.

Two other Republicans took starkly different views from McConnell.

Senate Judiciary Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyTop security officials issue stark warning of Chinese espionage efforts Lame-duck Congress should pass First Step Act The Hill's Morning Report — Takeaways from the battle royal in the Oval Office MORE (R-Iowa), fresh off the brutal Kavanaugh fight, told Fox News that if he is still committee chairman and there is a Supreme Court opening in 2020, the panel “won’t take it up.”

“Because I pledged that in 2016,” Grassley told Fox News’s Martha MacCallum. “That's a decision I made a long time ago.”

Grassley hasn’t said if he will remain chairman of the Judiciary Committee next year if Republicans keep control of the Senate. He could take over the Finance Committee, where current chairman Sen. Orrin HatchOrrin Grant HatchHatch warns Senate 'in crisis' in farewell speech Senate confirms Trump's pick to be deputy Treasury secretary Brzezinski: It’s ‘despicable’ for GOP lawmakers to dismiss Cohen memo implicating Trump MORE (R-Utah) is retiring after 2018.

Sen. Lindsey GrahamLindsey Olin GrahamGOP-controlled Senate breaks with Trump on Saudi vote Senators prepare for possibility of Christmas in Washington during a shutdown Dem senator: Trump 'seems more rattled than usual' MORE (R-S.C.), who attacked Judiciary Democrats with vitriol during Kavanaugh’s final hearing, also said he would support putting off a Supreme Court confirmation if an opening occurs during the presidential primary season.

“If an opening comes in the last year of President TrumpDonald John TrumpActivists highlight Trump ties to foreign autocrats in hotel light display Jose Canseco pitches Trump for chief of staff: ‘Worried about you looking more like a Twinkie everyday’ Dershowitz: Mueller's report will contain 'sins' but no 'impeachable offense' MORE’s term, and the primary process has started, we’ll wait until the next election,” Graham, who would be in line to serve as Judiciary’s chairman if Grassley steps aside and the GOP keeps its majority, said at a festival hosted by The Atlantic.

Graham reiterated to CNN on Tuesday that he would be “inclined,” once the 2020 primary season starts, to delay a Supreme Court nominee until the next president takes office.

A 2016 analysis of Supreme Court confirmations done by Josh Blackman, an adjunct scholar at the Cato Institute and law professor at South Texas College of Law Houston, found that eight justices had been confirmed in a presidential election year from a vacancy that opened up during that same year, the last occurring in 1932.

Only two were confirmed by a Senate controlled by an opposing political party from the president, the last taking place in 1888 when a Republican Senate confirmed Melville Fuller, who was nominated by Democratic President Cleveland.

Graham and Grassley would likely face intense pressure from McConnell and other conservatives to fill an opening to the court in 2020 if there is one. The conservative movement sees the appointments made by Trump and a GOP-controlled Senate as one of its greatest victories.

With the confirmations of Trump nominees Neil Gorsuch and Kavanaugh, conservatives believe they have shifted the high court to the right, potentially for decades to come.

Given the fact that three Supreme Court justices are at least 70 years old, it’s entirely possible Trump could get a chance at a third nomination. Axios reported last year that Trump privately predicted he would be able to make four appointments to the court.

Hatch sided with McConnell in the internal GOP debate, saying he believed Republicans would have to fill a vacancy, even if it occurred during the presidential election year.

“I think we have to if we can. I’m for moving ahead no matter what,” Hatch said.

Asked if it would appear “hypocritical” for Republicans to take up a nominee from Trump after they refused to move Garland’s nomination, Hatch said, “People would try to make that point but I’m not sure it works.”  

Sen. Mike LeeMichael (Mike) Shumway LeeGOP-controlled Senate breaks with Trump on Saudi vote Senate moves toward vote on ending support for Saudi-led war Dem lawmaker pledges hearings after CIA briefing on Khashoggi MORE (R-Utah) told Fox News Radio that the Constitution didn’t forbid them from confirming a Supreme Court nominee during an election year.

“I agree with Mitch McConnell's statement that this was a circumstance in which you had a Senate controlled by one party and a White House controlled by the other party. There's nothing written into the Constitution about that,” said Lee, a member of the Judiciary Committee.

Sen. Lisa MurkowskiLisa Ann MurkowskiSenate advances Trump energy pick after Manchin flips The Senate must reject Bernard McNamee’s nomination for FERC Overnight Defense: Congress pauses to mourn George H.W. Bush | Haspel to brief senators on Khashoggi killing | Soldier is fourth to die from Afghan IED blast MORE (R-Alaska), the only Republican to oppose Kavanaugh, began shaking her head when asked about a potential 2020 Supreme Court fight. She added that she didn’t know how to respond and that it was a “weird question.”

GOP Sen. Jeff FlakeJeffrey (Jeff) Lane FlakePence casts tie-breaking vote for Trump appeals court judge Dem: 'Disheartening' that Republicans who 'stepped up' to defend Mueller are leaving Flake: Republican Party ‘is a frog slowly boiling in water’ MORE (Ariz.), who is retiring after 2018, joked that he would leave the decision up to his colleagues. And Sen. John CornynJohn CornynCongress strikes deal on bill for sexual harassment cases involving lawmakers The Hill's Morning Report — Takeaways from the battle royal in the Oval Office Senate poised to buck Trump on Saudi Arabia MORE (Texas), the No. 2 Senate Republican, quipped: “Did somebody retire?”

“[McConnell] didn’t speak to what would happen if they were the same party. But, obviously we don’t have a Supreme Court nomination, so I’m not going to speculate or answer a hypothetical. ... When there’s a vacancy I would be happy to talk,” he said.

Sen. Thom TillisThomas (Thom) Roland TillisSenate votes to overturn IRS guidance limiting donor disclosure GOP tensions running high on criminal justice bill Trump tells McConnell to let Senate vote on criminal justice reform MORE (R-N.C.), a member of the Judiciary Committee, added that questions about a potential 2020 vacancy were “hypothetical” but indicated senators should give weight to Graham and Grassley’s positions.

“I’ve heard from the current chair and the member who would be chair that they wouldn’t take it up,” Tillis said, referring to Grassley and Graham. “If we’re really trying to restore some of the integrity of the Senate Judiciary Committee, I think there is something to be said to listening to … the chair and the potential chair.”

Democrats, for their part, aren’t surprised that McConnell might have a change in heart if the opportunity arises to appoint a justice in 2020.

“He’s prepared to break or change any rule, even those that he swore he would uphold, if it means getting another Republican on the federal court,” said Sen. Dick DurbinRichard (Dick) Joseph DurbinBrzezinski apologizes after backlash over homophobic remark about Pompeo Dems demand Pompeo brief Congress on whether he discussed Assange with Ecuadorian official McConnell agrees to vote on Trump-backed criminal justice bill MORE (D-Ill.).  

With a laugh, he said that he was “not at all surprised” by McConnell’s rhetoric.