SPONSORED:

Senate GOP divided over whether they'd fill Supreme Court vacancy 

Senate Republicans are conflicted about what to do if a Supreme Court seat becomes vacant during the remainder of President TrumpDonald John TrumpTrump admin to announce coronavirus vaccine will be covered under Medicare, Medicaid: report Election officials say they're getting suspicious emails that may be part of malicious attack on voting: report McConnell tees up Trump judicial pick following Supreme Court vote MORE's first term, a possibility that has come more into focus in recent weeks in light of Justice Ruth Bader GinsburgRuth Bader GinsburgBarrett sworn in as Supreme Court justice by Thomas Roberts to administer judicial oath to Barrett Tuesday Hillary Clinton tweets 'vote them out' after Senate GOP confirm Barrett MORE’s health problems.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell tees up Trump judicial pick following Supreme Court vote Democrats warn GOP will regret Barrett confirmation GOP Senate confirms Trump Supreme Court pick to succeed Ginsburg MORE (R-Ky.) has made clear that he intends to fill a Supreme Court vacancy in 2020, despite holding the seat vacated by the death of the late conservative Supreme Court Justice Antonin Scalia open during the 2016 presidential election.

“Oh, we’d fill it,” McConnell said with a smile when asked last year whether he would act to confirm a Trump nominee to the Supreme Court should a seat become vacant.

ADVERTISEMENT

The GOP leader doubled down on that promise earlier this year.

“If you’re asking me a hypothetical ... we would fill it,” McConnell told Fox News in February.

But not all Republicans are committed to the idea after McConnell and then-Senate Judiciary Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyBarrett confirmation stokes Democrats' fears over ObamaCare On The Money: Power players play chess match on COVID-19 aid | Pelosi bullish, Trump tempers optimism | Analysis: Nearly 1M have run out of jobless benefits Grassley: Voters should be skeptical of Biden's pledge to not raise middle class taxes MORE (R-Iowa) blocked Merrick GarlandMerrick Brian GarlandBarrett sworn in as Supreme Court justice by Thomas Democrats warn GOP will regret Barrett confirmation Roberts to administer judicial oath to Barrett Tuesday MORE, President Obama’s nominee to replace Scalia, from even getting a hearing.

Sen. Lisa MurkowskiLisa Ann MurkowskiHarris blasts GOP for confirming Amy Coney Barrett: 'We won't forget this' GOP Senate confirms Trump Supreme Court pick to succeed Ginsburg Murkowski predicts Barrett won't overturn Roe v. Wade MORE (R-Alaska) says that confirming a Trump nominee to the high court in the middle of an election year or during the lame-duck session in November and December would create a “double standard” after what happened in 2016.

“When Republicans held off Merrick Garland it was because nine months prior to the election was too close, we needed to let people decide. And I agreed to do that. If we now say that months prior to the election is OK when nine months was not, that is a double standard and I don’t believe we should do it,” she said. “So I would not support it.”

Scalia died in mid-February of 2016 and Obama nominated Garland, who was thought to have bipartisan support, on March 16, 2016.

ADVERTISEMENT

Several Senate Republicans voted to confirm Garland to the D.C. federal appeals court in 1997, including Sens. Susan CollinsSusan Margaret CollinsHouse Judiciary Republicans mockingly tweet 'Happy Birthday' to Hillary Clinton after Barrett confirmation Barrett sworn in as Supreme Court justice by Thomas Roberts to administer judicial oath to Barrett Tuesday MORE (Maine), James InhofeJames (Jim) Mountain InhofeGovernors urge negotiators to include top priorities in final defense policy bill Sexual assault case against Air Force general can proceed, judge rules House Democrat optimistic defense bill will block Trump's Germany withdrawal MORE (Okla.) and Pat RobertsCharles (Pat) Patrick RobertsSenate GOP's campaign arm releases first ad targeting Bollier in Kansas The Hill's Campaign Report: Trump, Biden hit campaign trail in Florida National Republicans will spend to defend Kansas Senate seat MORE (Kan.), as well as former Senate Judiciary Committee Chairman Orrin HatchOrrin Grant HatchMellman: What happened after Ginsburg? Bottom line Bottom line MORE (Utah) and the late Sen. John McCainJohn Sidney McCainObama book excerpt: 'Hard to deny my overconfidence' during early health care discussions Mark Kelly releases Spanish ad featuring Rep. Gallego More than 300 military family members endorse Biden MORE (Ariz.).

Any effort to fill a vacancy in the few months before Election Day or in a lame-duck session should Trump lose would be met with furious resistance from Democrats and allied advocacy groups.

“It would be outrageous to go back on their purported principles,” said Daniel Goldberg, legal director of the Alliance for Justice Action Campaign, a liberal advocacy group.

“It was not just keeping Merrick Garland off the bench, it was keeping a highly regarded, eminently qualified jurist who enjoyed broad bipartisan support, who was recommended by Orrin Hatch, off the bench,” he said.

Grassley, who now serves as the chairman of the Senate Finance Committee, said he’s inclined to follow the same course Republicans adopted in the last presidential election.

The Iowa senator said he doesn’t like to speculate about the health of specific Supreme Court justices. “In the abstract,” he emphasized, “I would do the same thing in 2020 that I would in 2016.”

But Grassley said the decision is up to current Senate Judiciary Committee Chairman Lindsey GrahamLindsey Olin GrahamGOP Senate confirms Trump Supreme Court pick to succeed Ginsburg Murkowski predicts Barrett won't overturn Roe v. Wade Biden seeks to close any path for Trump win in race's final days MORE (R-S.C.).

Graham, who is up for reelection in November, says whether he would move to fill a Supreme Court vacancy this year would depend on the opinions of GOP colleagues.  

“We’ve got to see where the market is, what other senators think,” he said.

Graham said he’d be “willing” to fill a vacancy, but cautioned: “I’d like to get input from my colleagues.”

“I don’t know. We’ll see,” he added. “I hope everybody stays healthy on the Supreme Court and we don’t have to worry about it.”

Republicans control 53 Senate seats and couldn’t afford more than three defections on a confirmation vote, assuming all 47 senators in the Democratic caucus stay unified.

ADVERTISEMENT

Graham added that he expects Trump will release a list of conservative nominees in the next few weeks. He said he’d pick from that list if there’s a Supreme Court vacancy this year or if there’s a vacancy in a second Trump term, should he win reelection.

Speculation over the possibility of a Supreme Court confirmation battle has picked up in recent days after Ginsburg, 87, announced last month that she had undergone treatment for liver cancer. Ginsburg was also reported to be hospitalized last week for what was described as a “minimally invasive nonsurgical procedure” to revise a bile duct stent.

The associate justice said last month that a chemotherapy course is “yielding positive results” and she would stay on the court.

“I have often said I would remain a member of the Court as long as I can do the job full steam. I remain fully able to do that,” she said.

Two key Republican moderates, Collins and Sen. Mitt RomneyWillard (Mitt) Mitt RomneyThe Memo: Five reasons why Trump could upset the odds Will anyone from the left realize why Trump won — again? Ratings drop to 55M for final Trump-Biden debate MORE (Utah), declined to say whether Republicans should hold open a Supreme Court vacancy this year.

“We do not have a vacancy on the Supreme Court. All nine justices are alive,” Collins said.

ADVERTISEMENT

Romney said: “I’m not at a point where I have something to say.”

McConnell argues that 2020 is different because the same party, Republicans, control both the White House and the Senate, whereas in 2016 Democrats controlled the White House and Republicans controlled the Senate.

Marge Baker, executive vice president for Policy at People for the American Way, warned that Senate Republicans up for reelection would pay a political price for confirming a conservative nominee right before the election after blocking Garland in 2016.

“I do think it’s hard to explain why in 2016 they voted to let the people decide and now in 2020 they would not be doing that. So I think it creates a problem for them in terms of explaining what changed other than who the president is,” she said. “It’s very late in the year, much later than when Merrick Garland was nominated."

“It’s not clear to me that this is a fight that the Republican senators would want,” she added.

Senate Republican Whip John ThuneJohn Randolph ThunePence won't preside over Barrett's final confirmation vote Gaffes put spotlight on Meadows at tough time for Trump White House getting pushback on possible government-owned 5G network MORE (S.D.) says he would support filling a vacancy before the election but expressed uncertainty about acting during the lame-duck session between Election Day and Inauguration Day on Jan. 20 should Trump lose reelection.

ADVERTISEMENT

He says a vacancy should be filled “if the vacancy were to occur pre-election.”

“If the election is over and the president is still the president, then I think it’s fair game. If there was a change in administration, obviously you got a lame-duck administration. That’s perhaps is a different scenario,” he said.

Sen. Josh HawleyJoshua (Josh) David HawleyMurkowski predicts Barrett won't overturn Roe v. Wade Infrastructure, energy investments urgently needed to create U.S. jobs Justice Department charges Google with illegally maintaining search monopoly MORE (R-Mo.), a rising conservative star who was elected in 2018, says the Senate should confirm a Supreme Court nominee this year and argued a key distinction between now and 2016 is that four years ago Obama was ending his second term while Trump now has a chance to serve another four years in office.

“If there’s a vacancy and there’s a nomination, I’d be in favor of moving to fill it,” he said.

“In 2016, you had a lame-duck president who was not going to be there no matter what. This time you’ve got a president who is running for reelection. He’s on the ballot in November. The Supreme Court is going to be a central issue of the campaign,” he said, although he acknowledged a confirmation would be a “big, heavy lift.”