The battle looming over a replacement for the late Supreme Court Justice Ruth Bader Ginsburg has many Republicans backpedaling from past stances on election-year vacancies.
The most vivid example may be Judiciary Chairman Lindsey Graham, who will preside over hearings on President Donald Trump’s nominee.
Two years ago, Graham said Republicans made the right decision in 2016 by preventing President Barack Obama from selecting a Supreme Court justice during a presidential election year.
“If an opening comes in the last year of President Trump’s term and the primary process is started, we’ll wait for the next election,” the South Carolina senator said at an Atlantic Festival event. Reminded that he was on the record, Graham said, “Hold the tape.”
Things have changed.
Graham, a loyal Trump backer and frequent golf partner, said on Saturday that actions by Democrats forced him to change his mind. He cited their decision when they controlled the Senate to eliminate the filibuster for Circuit Court nominees and the way Senate Democratic leader Chuck Schumer “and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh,” Trump’s last court pick.
Both of those events preceded Graham’s 2018 statement.
Trump said Saturday he expects to announce a nominee next week and it would be “very good” if the Senate holds a confirmation vote before the Nov. 3 election.
There’s no shortage of videos and floor statements of other Republican senators saying in 2016 that voters should get a chance to weigh in on Supreme Court picks through the presidential election. Democrats also are changing course on where they stand on the topic, saying the GOP must follow their precedent from 2016.
When Supreme Court Justice Antonin Scalia died in 2016, Senate Majority Leader Mitch McConnell prevented Obama’s nominee from even getting a hearing, much less a vote, with the backing of all the GOP members of the Senate Judiciary Committee. In the face of furious pushback by Democrats, he argued that voters should have a say.
He also argued that there was longstanding precedent not to confirm a nominee in a presidential election year from another party.
Less than 90 minutes after Ginsburg’s death was announced, McConnell put out a statement lauding her service but promising to forge ahead with confirmation.
“President Trump’s nominee will receive a vote on the floor of the United States Senate,” he said, without specifying whether that vote would come before or after Election Day.
Senator Chuck Grassley, the Judiciary chairman in 2016, in May reaffirmed that the Senate shouldn’t fill an opening on the Supreme Court before the election.
“You can’t have one rule for Democratic presidents and another rule for Republican presidents,” he said at an event in Iowa, according to the Des Moines Register.
In his statement on Ginsburg’s death Friday night, Grassley didn’t mention the effort to fill the vacancy.
Other GOP senators as well have defended holding up Obama’s nominee. Senator Ted Cruz said on NBC’s “Meet the Press” in February of 2016 that “it has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”
Cruz, however, told Fox News on Friday night that Trump should nominate a replacement and the Senate should confirm the nominee before the election, warning of a potential 4-4 split on election-related challenges.
There is little expectation in Washington that four Republicans would band together to block Trump’s nominee. For most Republican senators, voting for a Supreme Court justice who could overturn the Roe v Wade ruling that made the procedure legal is simply a requirement if they want to keep their voting base with them.
Abortion rights opponents were already pressing them for a confirmation vote Friday night.
Thom Tillis of North Carolina, one of the most vulnerable incumbent Republican senators in 2020, tweeted out a statement saying he would vote for Trump’s still-unnamed pick, sight unseen.
On Friday night, Senator Martha McSally of Arizona, generally seen as the most endangered Republicans on the ballot, also tweeted out the Senate should vote on Trump’s nomination.
Maine Senator Susan Collins became the first Republican to break ranks with GOP leadership and Trump to say the next Supreme Court nominee should be selected by whoever is elected president on Nov. 3.
“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 said in a statement Saturday.
Senator Lisa Murkowski told Alaska Public Radio Friday hours before Ginsburg’s death was announced that if there were a vacancy on the court this year she wouldn’t vote to confirm a nominee before the election. But a statement she issued about Ginsburg’s death didn’t address next steps.
In backing putting a replacement on the court this year, Republicans argue that the situation was different in 2016 because the Senate and the White House were held by different parties and Obama wasn’t up for re-election.
That is one argument McConnell has put forward in 2016 and in more recent interviews when he vowed to fill an opening this year — saying the precedent they followed was that nominations would not go forward during a period when the Senate and the White House were in different hands.
But that sort of pure power politics — that Republican senators would simply vote to block Democratic picks but confirm Republicans — wasn’t their dominant talking point in 2016.
It was that voters should get a chance to weigh in.
Schumer even tweeted out one of McConnell’s own statements on the death of Scalia as his own Friday night: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” Schumer tweeted.
Of course, Schumer and other Democrats were also making a very different argument in 2016. They cited other precedents where the Senate voted on Supreme Court nominees even in a presidential election year.
Democrats who argued for confirming Garland four years ago, now say the GOP’s precedent should prevail, with some warning of massive retaliation if Republicans go ahead and fill the seat.
“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” Senator Ed Markey of Massachusetts tweeted Friday night. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
— With assistance by Billy House, and Laura Litvan
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