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 KavanaughThe Hill's Morning Report — Category 5 Mueller storm to hit today On The Money: Cain 'very committed' to Fed bid despite opposition | Pelosi warns no US-UK trade deal if Brexit harms Irish peace | Ivanka Trump says she turned down World Bank job GOP strategist: Alabama Republicans need to 'gather around' candidate who 'is not Roy Moore' 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 McConnellOvernight Health Care: McConnell offering bill to raise tobacco-buying age to 21 | NC gov vetoes 'born alive' abortion bill | CMS backs off controversial abortion proposal HR 1 brings successful local, state reforms to the federal level and deserves passage The Hill's 12:30 Report: Inside the Mueller report MORE (R-Ky.) refused to rule out taking up a nomination in 2020, even though Republicans blocked Merrick GarlandMerrick Brian GarlandThe Hill's Morning Report — Category 5 Mueller storm to hit today McConnell touts Trump support, Supreme Court fights in reelection video Hatch warns 'dangerous' idea of court packing could hurt religious liberty 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 GrassleyOn The Money: Inside the Mueller report | Cain undeterred in push for Fed seat | Analysis finds modest boost to economy from new NAFTA | White House says deal will give auto sector B boost The 7 most interesting nuggets from the Mueller report Government report says new NAFTA would have minimal impact on economy 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 'dangerous' idea of court packing could hurt religious liberty Former Democratic aide pleads guilty to doxing GOP senators attending Kavanaugh hearing How do we prevent viral live streaming of New Zealand-style violence? MORE (R-Utah) is retiring after 2018.

Sen. Lindsey GrahamLindsey Olin GrahamBarr to allow some lawmakers to review less-redacted Mueller report as soon as next week Collins backs having Mueller testify The Hill's 12:30 Report: Inside the Mueller report 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 TrumpButtigieg on Mueller report: 'Politically, I'm not sure it will change much' Sarah Sanders addresses false statements detailed in Mueller report: 'A slip of the tongue' Trump to visit Japan in May to meet with Abe, new emperor 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 LeeDems sound alarm over top DOJ nominee Restore Pell Grant eligibility to people in prison Former Democratic aide pleads guilty to doxing GOP senators attending Kavanaugh hearing 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 MurkowskiCain says he 'won't run away from criticism' in push for Fed seat Cain says he won't back down, wants to be nominated to Fed License to discriminate: Religious exemption laws are trampling rights in rural America 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 FlakePollster says Trump unlikely to face 'significant' primary challenge Trump gives nod to vulnerable GOP Sen. McSally with bill signing Flake opens up about threats against him and his family MORE (Ariz.), who is retiring after 2018, joked that he would leave the decision up to his colleagues. And Sen. John CornynJohn Cornyn Embattled senators fill coffers ahead of 2020 Trump struggles to reshape Fed Congress opens door to fraught immigration talks 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 TillisPro-life Christians are demanding pollution protections Embattled senators fill coffers ahead of 2020 Abrams: Schumer has been 'relentless but thoughtful' about Senate bid 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 DurbinDurbin calls Mueller report findings on Trump team 'troubling' Congress opens door to fraught immigration talks McConnell: 'Past time' for immigration-border security deal MORE (D-Ill.).  

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