Senate Republicans face tough decision on replacing Ginsburg

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTop Senate GOP super PAC makes final .6M investment in Michigan Senate race On The Money: McConnell says Congress will take up stimulus package at start of 2021 | Lawmakers see better prospects for COVID deal after election Overnight Health Care: House Dem report blasts Trump coronavirus response | Regeneron halts trial of antibody drug in sickest hospitalized patients | McConnell says Congress will take up stimulus package at start of 2021 MORE (R-Ky.) said the Senate would vote to confirm a Trump nominee to succeed Justice Ruth Bader GinsburgRuth Bader GinsburgThe truth, the whole truth about protecting preexisting conditions McConnell plans to fill two key circuit court seats even if Trump loses GOP faces fundraising reckoning as Democrats rake in cash MORE in a statement released an hour after her death, but it's unclear whether he can convince a majority of his colleagues to do so.

While several GOP senators on Friday evening were saying that a vote should go forward, some were notably silent on the issue.

McConnell can only afford three defections on what would be one of the most controversial Senate votes in history.


Two key Republican moderates, Sens. Lisa MurkowskiLisa Ann MurkowskiAlaska Senate race sees cash surge in final stretch Bitter fight over Barrett fuels calls to nix filibuster, expand court The Hill's Morning Report - Sponsored by Facebook - Justice Barrett joins court; one week until Election Day MORE (R-Alaska) and Susan CollinsSusan Margaret CollinsSusan Collins says systemic racism isn't 'a problem' in Maine Biden, Cunningham hold narrow leads in North Carolina: poll GOP sees path to hold Senate majority MORE (R-Maine), released statements mourning Ginsburg, but did not mention a Senate vote on a Trump nominee.

The two have previously indicated they would not support filling a vacancy weeks before the election. Collins is up for reelection in less than two months, and is badly behind in polls. A key issue in her campaign is her vote to confirm Justice Brett KavanaughBrett Michael KavanaughVermont secretary of State says Kavanaugh's correction still unsatisfactory Kavanaugh corrects opinion in voting case following Vermont official's objection The Hill's Morning Report - Sponsored by Facebook - Trump, Biden blitz battleground states MORE to the court.  

Murkowski told The Hill over the summer that attempting to fill a Supreme Court vacancy right before the November election or during a lame-duck session in December would create “a double standard” and she “would not support it.”

Murkowski pointed to Senate Republicans' decision in 2016 to keep vacant the seat of late conservative Justice Antonin Scalia until a new president was elected in that year’s election. Then-President Obama nominated D.C. Circuit Court of Appeals Judge Merrick GarlandMerrick Brian GarlandWhat a Biden administration should look like McConnell and Schumer's relationship shredded after court brawl Bitter fight over Barrett fuels calls to nix filibuster, expand court MORE to fill Scalia’s vacant seat in March of 2016 but he never received a Senate Judiciary Committee hearing or a vote.

“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,” Murkowski said. “So I would not support it.”

Another key vote is Sen. Mitt RomneyWillard (Mitt) Mitt RomneyThe looming battle over Latino voters Arizona: On the fast track to swing state status Why Biden could actually win Texas MORE (Utah), the only Senate Republican to vote to convict Trump on an article of impeachment.


Romney also released a statement Friday that mourned Ginsburg, but gave no clues on his feelings about a Senate confirmation vote ahead of the presidential election. 

He declined earlier this year to say what he would do if a Supreme Court seat became vacant before Election Day.

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

It's not clear if any other Republicans might waver on voting to confirm a Trump nominee to replace Ginsburg ahead of the election, though GOP senators in Iowa, North Carolina, Colorado and Montana will all have to consider the decision in the context of toss-up Senate races this fall.

Sen. Martha McSallyMartha Elizabeth McSallyMark Kelly on Trump hurrying McSally rally speech: Have 'respect' Arizona: On the fast track to swing state status Trump fights for battleground Arizona MORE (Ariz.), the most endangered GOP senator up for reelection this fall, tweeted that the current Senate should vote on a Trump nominee. Other GOP senators, including Texas Sen. Ted CruzRafael (Ted) Edward CruzThe Memo: Texas could deliver political earthquake Harris to travel to Texas Friday after polls show tie between Trump, Biden Cruz wants donors to repay K he loaned to his 2018 campaign MORE, also called for the current Senate to vote before Election Day.

Sen. Cory GardnerCory Scott GardnerDemocrats brace for nail-biting finish to Senate battle Trump expressed doubt to donors GOP can hold Senate: report The Hill's Campaign Report: 2020 spending wars | Biden looks to clean up oil comments | Debate ratings are in MORE (R-Colo.), who like Collins is running in a state where Biden is expected to win, in 2016 expressed support for keeping the Scalia seat vacant so that voters could have an influence on the future composition of the court.

“In 1992, even then-Senator Joe BidenJoe BidenBiden leads Trump by 8 points nationally: poll Ivanka Trump raises million in a week for father's campaign On The Money: McConnell says Congress will take up stimulus package at start of 2021 | Lawmakers see better prospects for COVID deal after election MORE stated the Senate should not hold confirmation hearings for a Supreme Court nominee until after that year’s presidential election. Our next election is too soon and the stakes are too high; the American people deserve a role in this process as the next Supreme Court Justice will influence the direction of this country for years to come,” Gardner said in March 2016.

It has taken an average of 74 days to confirm the last 10 justices appointed to the Supreme Court, ranging from 99 days for Clarence ThomasClarence ThomasHow recent Supreme Court rulings will impact three battleground states Supreme Court rejects second GOP effort to block mail-ballot extension in North Carolina Supreme Court rejects Trump effort to shorten North Carolina mail-ballot deadline MORE in 1991 to 50 days for Ginsburg in 1993.

Election Day is 46 days away and the newly elected Congress is not scheduled to come into session for another 107 days.

Democratic operatives on Friday sought to put pressure on another vulnerable Republican facing reelection, Sen. Steve DainesSteven (Steve) David DainesGOP sees path to hold Senate majority Democrat trails by 3 points in Montana Senate race: poll Poll shows statistical tie in Montana Senate race MORE (R-Mont.), by circulating his statement in 2016: “I don’t think it’s right to bring a nominee forward in an election year.” 

Other Senate Republicans have expressed uncertainty about whether a Supreme Court vacancy should be filled immediately before the election or during a lame-duck session, including Senate Judiciary Committee Chairman Lindsey GrahamLindsey Olin GrahamGOP faces fundraising reckoning as Democrats rake in cash The Hill's 12:30 Report - Presented by Facebook - Election night could be a bit messy The Hill's Morning Report - Sponsored by Facebook - Trump, Biden blitz battleground states MORE (R-S.C.).

Graham told The Hill in July that it would depend on where members of the Senate GOP conference stood on the question.


“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.”

Sen. 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), who was the chairman of the Senate Judiciary Committee in 2016 when Garland was blocked from getting a hearing, said that in theory the Senate should be consistent in how it handles election-year nominations to the high court.

“In the abstract,” he told The Hill this summer. “I would do the same thing in 2020 that I would in 2016.”

But the senior Iowa senator didn’t lay down any hard and fast rule of what should happen should a vacancy arise before Nov. 3. He said the decision would be up to Graham as the current chairman of the Judiciary panel. 

Collins will be among the most-watched GOP senators.


Collins told New York Times reporter Jonathan Martin earlier this month in Maine that she would not support seating a new justice in October.

“I think that’s too close, I really do,” she said, according to a tweet Martin posted Friday evening.

Collins also told the reporter that she would oppose seating a justice during a lame-duck session if Trump loses re-election.

It is difficult to guess at some of the decisions for senators, who will have to weigh a number of issues.

While Romney is not a Trump fan, he has declared support in the past for overturning Roe v. Wade, the landmark case that established abortion rights, and hails from a conservative state.

He would presumable prefer the vacant court seat be filled by a Republican, even if it is Trump, instead of Joe Biden, who has a chance of capturing the White House.


But unlike some other Senate Republicans, Romney has not been a life-long opponent of abortion rights.

When he ran against Sen. Ted Kennedy (D-Mass.) for Senate in 1994, Romney said policy makers “should sustain and support” Roe v. Wade as a well-established law.

“I sustain and support that law and the right of a woman to make that choice,” he said at the time.