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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 John TrumpNearly 300 former national security officials sign Biden endorsement letter DC correspondent on the death of Michael Reinoehl: 'The folks I know in law enforcement are extremely angry about it' Late night hosts targeted Trump over Biden 97 percent of the time in September: study MORE to replace Justice Ruth Bader GinsburgRuth Bader GinsburgSenate GOP eyes Oct. 26 for confirming Barrett to Supreme Court GOP blocks Schumer effort to adjourn Senate until after election Overnight Defense: Supreme Court to hear case on diversion of Pentagon funds to border wall | Biden campaign cutting retired general from ad after objection | Trump's arms control talks with Russia hit wall 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 GarlandSenate Republicans offer constitutional amendment to block Supreme Court packing This week: Clock ticks on chance for coronavirus deal Push to expand Supreme Court faces Democratic buzzsaw MORE, President Obama’s nominee, after conservative Justice Antonin Scalia died on Feb. 13, 2016.

Two GOP senators, Susan CollinsSusan Margaret CollinsSenate GOP eyes Oct. 26 for confirming Barrett to Supreme Court GOP blocks Schumer effort to adjourn Senate until after election This week: Clock ticks on chance for coronavirus deal MORE of Maine and Lisa MurkowskiLisa Ann MurkowskiSenate GOP eyes Oct. 26 for confirming Barrett to Supreme Court This week: Clock ticks on chance for coronavirus deal Climate change — Trump's golden opportunity 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.  

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But Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellSenate GOP eyes Oct. 26 for confirming Barrett to Supreme Court GOP noncommittal about vote on potential Trump-Pelosi coronavirus deal Overnight Health Care: Trump takes criticism of Fauci to a new level | GOP Health Committee chairman defends Fauci | Birx confronted Pence about Atlas 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 GrahamGOP blocks Schumer effort to adjourn Senate until after election Biden and Schumer face battles with left if Democrats win big Push to expand Supreme Court faces Democratic buzzsaw 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 KavanaughSupreme Court denies GOP bid to block extended mail ballot due date in Pennsylvania Biden and Schumer face battles with left if Democrats win big Major abortion rights group calls for Democrats to replace Feinstein on Judiciary Committee 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 AlexanderAndrew (Lamar) Lamar AlexanderOvernight Health Care: Trump takes criticism of Fauci to a new level | GOP Health Committee chairman defends Fauci | Birx confronted Pence about Atlas GOP Health Committee chairman defends Fauci amid Trump criticism Baldwin calls for Senate hearing on CDC response to meatpacking plant coronavirus outbreak MORE (R-Tenn.), chairman of the Senate Republican Conference, issued a statement Sunday calling such action by the Senate no surprise.

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“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) WallaceCommission approves rules to mute mics at final Trump-Biden debate 10 steps toward better presidential debating Trump campaign demands change to final debate topics MORE on "Fox News Sunday" over whether Republicans were being hypocritical on the issue, Sen. Tom CottonTom Bryant CottonBarrett fight puts focus on abortion in 2020 election COVID outbreak threatens GOP's Supreme Court plans This week: Coronavirus complicates Senate's Supreme Court fight 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. 

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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.