GOP brushes back charges of hypocrisy in Supreme Court fight

Republicans are brushing back charges of hypocrisy as they march toward a possible vote ahead of the election that would confirm a nominee from President TrumpDonald TrumpClinton, Bush, Obama reflect on peaceful transition of power on Biden's Inauguration Day Arizona Republican's brothers say he is 'at least partially to blame' for Capitol violence Biden reverses Trump's freeze on .4 billion in funds MORE to replace Justice Ruth Bader GinsburgRuth Bader GinsburgSchumer becomes new Senate majority leader Ruth Bader Ginsburg, George Floyd among options for 'Remember the Titans' school's new name Bipartisan anger builds over police failure at Capitol MORE on the Supreme Court.

Democrats have howled that it would be the height of hypocrisy for Republicans to confirm a Trump nominee weeks before an election after they refused to hold even a hearing for Merrick GarlandMerrick Brian GarlandBiden's new challenge: Holding Trump accountable Graham says he'll back Biden's CIA pick A Democratic agenda for impossibly hard times MORE, President Obama’s nominee, after conservative Justice Antonin Scalia died on Feb. 13, 2016.

Two GOP senators, Susan CollinsSusan Margaret CollinsGOP senators praise Biden's inauguration speech LIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing The Memo: Biden prepares for sea of challenges MORE of Maine and Lisa MurkowskiLisa Ann MurkowskiMcConnell faces conservative backlash over Trump criticism GOP senators praise Biden's inauguration speech Biden urges Americans to join together in appeal for unity MORE of Alaska, have said they do not think the Senate should vote on a nominee before the election, saying a standard was set when Garland was blocked by Republicans.  


But Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBudowsky: Democracy won, Trump lost, President Biden inaugurated Biden's inauguration marked by conflict of hope and fear McConnell faces conservative backlash over Trump criticism MORE (R-Ky.) argues this time is different because it is a Republican president in the White House and the GOP holds the Senate. In 2016, McConnell says, it was appropriate to block Garland because the GOP held the Senate and a Democrat held the White House.

Republicans appear to be getting behind McConnell for the most part. Sen. Lindsey GrahamLindsey Olin GrahamMcConnell faces conservative backlash over Trump criticism Schumer becomes new Senate majority leader Senate presses Biden's pick for secretary of State on Iran, China, Russia and Yemen MORE (R-S.C.), the chairman of the Senate Judiciary Committee, once said he would oppose such a move and encouraged people to use his words against him if he changed his position. Over the weekend, he signaled support for replacing Ginsburg quickly with a Trump nominee.

“Being lectured by Democrats about how to handle judicial nominations is like an arsonist advising the Fire Department,” Graham, who is in a tight reelection race, tweeted Sunday.

He also criticized the other party over the furious battle over Justice Brett KavanaughBrett Michael KavanaughLIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing Harris to resign from Senate seat on Monday Why we need Section 230 more than ever MORE’s confirmation and suggested this was payback.

“Democrats chose to set in motion rules changes to stack the court at the Circuit level and they chose to try to destroy Brett Kavanaugh’s life to keep the Supreme Court seat open. You reap what you sow.”

Sen. Lamar AlexanderLamar AlexanderCongress addressed surprise medical bills, but the issue is not resolved Trump renominates Judy Shelton in last-ditch bid to reshape Fed Senate swears-in six new lawmakers as 117th Congress convenes MORE (R-Tenn.), chairman of the Senate Republican Conference, issued a statement Sunday calling such action by the Senate no surprise.


“No one should be surprised that a Republican Senate majority would vote on a Republican President’s Supreme Court nomination, even during a presidential election year. The Constitution gives senators the power to do it. The voters who elected them expect it,” he said.

Questioned aggressively by Fox News’s Chris WallaceChristopher (Chris) WallaceChris Wallace: This was best inaugural address I've ever heard Fox News's DC managing editor Bill Sammon to retire Arkansas governor: Intelligence on state capitol protests 'not to the level that I'm bringing out the National Guard' MORE on "Fox News Sunday" over whether Republicans were being hypocritical on the issue, Sen. Tom CottonTom Bryant CottonSenate confirms Biden's intel chief, giving him first Cabinet official Overnight Defense: Biden inaugurated as 46th president | Norquist sworn in as acting Pentagon chief | Senate confirms Biden's Intel chief McConnell faces conservative backlash over Trump criticism MORE (R-Ark.) held his ground.

Wallace played video of comments by Cotton in 2016 arguing it would be wrong for the Senate to vote on a replacement for Scalia before the presidential election.

“Why would we squelch the voice of the people? Why would we deny the voters a chance to weigh in on the makeup of the Supreme Court?” Cotton said on the Senate floor in 2016.

“You don’t see any hypocrisy between that position then and this position now?” Wallace asked.

“Chris, the Senate majority is performing our constitutional duty and fulfilling the mandate that the voters gave us,” Cotton responded.

Democrats say McConnell’s logic is tortured and warn it will lead to an escalating series of events if they control the White House and Senate after the election. Some Democratic lawmakers are already calling for nixing the legislative filibuster and expanding the Supreme Court next year if they are in the majority as retaliation if the GOP confirms a third nominee for Trump. 

“It's superficially hypocritical, isn't it,” former President Clinton, who nominated Ginsburg to the court, said Sunday on CNN’s “State of the Union.”

“Mitch McConnell wouldn't give president Obama's nominee, Merrick Garland, a hearing 10 months before the presidential election, and that meant that we went a long time with eight judges on the court,” he added.

The charges of hypocrisy are the latest entry in an increasingly toxic, years-long feud between the two parties over the courts.

Democrats nixed the filibuster for most nominations in 2013, and Republicans got rid of the same 60-vote threshold for Supreme Court nominations in 2017, allowing the party in the majority to confirm picks without any bipartisan support.

Republicans argue that Democrats laid the groundwork for the current dynamic with their decision in 2013, but Democrats scoff at the notion that McConnell wouldn't have gotten rid of the same procedural hurdle when it was convenient. 


The Senate leader’s office has circulated a fact sheet pointing to McConnell’s distinction between the single-party dominance of the White House and Senate in 2020 and 2016’s divided White House and Senate majority.

“Leader McConnell consistently explained that a Senate controlled by the party opposite that of the president hasn’t filled a Supreme Court vacancy in a presidential election year for over a century,” stated McConnell’s office.

Not every Republican agrees with McConnell.

“In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd,” Collins, who is in the midst of a difficult reelection race, said in a statement released Saturday.

Trump responded to Collins in comments to White House pool reporters on Saturday, explaining that he believed he had an “obligation” to his voters to pick the next nominee. That decision could come as soon as this week. Republicans can confirm a nominee with 50 votes and a tie-breaker from Vice President Pence, meaning unless two more GOP senators oppose replacing Ginsburg before the election, it seems likely they will move forward.

“Well, I totally disagree with [Collins],” Trump said before heading to a campaign event in North Carolina. 

“We have an obligation. We won. And we have an obligation, as the winners, to pick who we want. That’s not the next president. Hopefully, I’ll be the next president,” Trump said. “But we’re here now. Right now, we’re here. And we have an obligation to the voters, all of the people — the millions of people that put us here in the form of a victory.” 

Jordain Carney contributed to this report, which was updated at 7:38 a.m.