What Senate Republicans Have Said About Filling a Supreme Court Vacancy in Election Year

September 19, 2020 Updated: September 19, 2020

The death of Justice Ruth Bader Ginsberg has thrust Senate Republicans into the spotlight as they face pressure to fill the vacancy left by the liberal justice.

Republicans control the Senate with 53 members compared to 47 for the Democrats, meaning they effectively have the numbers needed to confirm a nominee as only a majority is required after the Senate eliminated the 60-vote threshold in 2017. Democrats would need to convince four Republicans to join them in blocking a President Donald Trump pick—given Vice President Mike Pence can break a 50–50 tie—which would likely spark a fierce battle over the future of the nation’s top court.

Several Senate Republicans, especially moderates, have held different views on whether it would be too late to confirm a President Donald Trump nominee at this stage in the election cycle. Moderate senators such as Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), Mitt Romney (R-Utah) are likely to play a crucial role in the confirmation.

Senate Majority Leader Mitch McConnell (R-Ky.) had already indicated that any Trump nominee would receive a vote, although he famously declined to hold hearings for then-President Barack Obama’s pick in 2016 to replace the late Justice Antonin Scalia 11 months before the election, saying the seat should be opened for the new president to fill.

Meanwhile, other Senate Republicans have rallied behind McConnell to move forward in filling the vacancy.

Here are where some senators stand on the issue:

McConnell

The Kentucky senator noted in a statement on Friday that Trump’s nominee “will receive a vote on the floor of the United States Senate,” making it clear that he would not adhere to the standard he set in 2016. This would likely spark controversy and put pressure on Republicans, who would be accused of being hypocritical.

McConnell has sought to differentiate the two scenarios, saying that during Obama’s nomination the Senate and the presidency were held by different parties. Republicans currently hold both.

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” McConnell said.

“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.”

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Senate Majority Leader Mitch McConnell (R-Ky.) speaks to reporters after the Senate Republican luncheon on Capitol Hill in Washington on Sept. 9, 2020. (Kevin Lamarque/Reuters)

Sen. Martha McSally (R-Ariz.)

McSally is one of the first senators to announce her support of filling the vacancy with a Trump nominee.

“This U.S. Senate should vote on President Trump’s next nominee for the U.S. Supreme Court,” she said in a statement on Twitter on Friday night.

Sen. Rick Scott (R-Fla.)

Scott, who does not face a re-election battle in 2020, said on Friday night that he supports filling the vacancy.

“It would be irresponsible to allow an extended vacancy on the Supreme Court. I believe that President Trump’s nominee should get a vote in the U.S. Senate,” he said in a statement on Twitter.

Sen. Ted Cruz (R-Texas)

Cruz said on Friday that he thinks it is important that the Senate confirms a successor before Election Day, saying that there could be a constitutional crisis if Republicans fail to do this.

“We cannot have Election Day come and go with a four-four court,” Cruz told Fox News’ Sean Hannity.

“A four-four court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested election.”

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Sen. Ted Cruz (R-Texas) speaks to media in the Capitol in Washington on Jan. 28, 2020. (Charlotte Cuthbertson/The Epoch Times)

Sen. Lindsey Graham (R-S.C.)

Earlier this year, Graham said that the Senate would work toward confirming a Supreme Court nominee if a vacancy arises, adding that the situation would be different from the circumstances in 2016 with Merrick Garland.

“Well, Merrick Garland was a different situation. You had the president of one party nominating, and you had the Senate in the hands of the other party. A situation where you’ve got them both would be different. I don’t want to speculate, but I think appointing judges is a high priority for me in 2020,” Graham said in an interview on Full Court Press with Greta Van Susteren.

“If you look into the history of the country, there had not been an occasion where somebody was confirmed in a presidential election year after primary started when you had divided government.”

On Saturday, Graham responded to a Twitter post by the president where he said, “I fully understand where President @realDonaldTrump is coming from.”

Trump sent a message to Republicans earlier on Saturday, saying that they have the obligation to confirm pick a successor “without delay.”

“We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”

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Senate Judiciary Chairman Lindsey Graham (R-S.C.) speaks during a Senate Judiciary Committee oversight hearing to examine the Crossfire Hurricane investigation, on Capitol Hill in Washington on Aug. 5, 2020. (Carolyn Kaster/Pool/AFP via Getty Images)

Murkowski

Murkowski had previously indicated that she would not support filling a vacancy before the November election, pointing to Senate Republicans’ decision in 2016 to keep Scalia’s seat vacant.

“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 told The Hill earlier this year. “So I would not support it.”

Her position has not changed since Ginsburg passing, telling Alaska Public Media that she would not vote to confirm a Supreme Court nominee.

“We are 50 some days away from an election,” she said, adding that the people should decide.

Collins

Collins, who was the deciding vote during Justice Brett Kavanaugh’s confirmation, has not yet indicated whether she would support a vote of a potential nominee.

She told The New York Times earlier this month that she thinks voting for a new Justice in October would be “too close.”

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Sen. Susan Collins (R-Maine) arrives at the Capitol for President Donald Trump’s State of the Union address, in Washington on Feb. 4, 2020. (Charlotte Cuthbertson/The Epoch Times)

Romney

Romney, the only Republican to vote to impeach or convict Trump, had not indicated a position on the issue.

Liz Johnson, a Romney spokeswoman, said on Twitter a claim that the senator has committed to not confirming a nominee until after inauguration day is “grossly false.”

Sen. Joni Ernst (R-Iowa)

Ernst said in July that she would be supportive of proceeding with any hearings even during a lame-duck session because the presidency and Senate are of the same house.

“I would support going ahead with any hearings that we might have,” Ernst told PBS in Iowa. “And if it comes to an appointment prior to the end of the year, I would be supportive of that.”

Sen. John Thune (R-S.D.)

Thune has backed McConnell saying in a statement on Friday he believes it is crucial that a vote on the floor is held.

“I believe Americans sent a Republican president and a Republican Senate to Washington to ensure we have an impartial judiciary that upholds the Constitution and the rule of law,” Thune said. “We will fulfill our obligation to them. As Leader McConnell has said, President Trump’s Supreme Court nominee will receive a vote on the floor of the U.S. Senate.”

Sen. Cory Gardner (R-Colo.)

Gardner, a potential swing vote, has not indicated his position but defended the decision to deny a hearing for Obama’s pick in 2016.

“[T]he next president of the United States should have the opportunity to fill the vacancy on the Supreme Court. In 1992, even then-Senator Joe Biden 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 a statement at the time.

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Sen. Cory Gardner (R-Colo.) talks to reporters in the Hart Senate Office Building on Capitol Hill in Washington on June 9, 2020. (Chip Somodevilla/Getty Images)

Sen. Thom Tillis (R-N.C.)

Tillis has signaled his support for a vote on Saturday. In a statement, he said: “Four years ago, a Supreme Court vacancy arose under divided government and a lame-duck president as Americans were choosing his successor. Today, however, President Trump is again facing voters at the ballot box and North Carolinians will ultimately render their judgment on his presidency and how he chooses to fill the vacancy.”ee-supreme-court

“There is a clear choice on the future of the Supreme Court between the well-qualified and conservative jurist President Trump will nominate and I will support, and the liberal activist Joe Biden will nominate and Cal Cunningham will support, who will legislate radical, left-wing policies from the bench,” he added.

Democrats

Top Democrats are opposed to holding a vote for a potential nominee. Sen. Dianne Feinstein (D-Calif.) and Senate Minority Leader Chuck Schumer (D-N.Y.) were quick to say that the vacancy should not be filled before the election.

“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 said.

This is in contrast to his position in 2016 where he said, “Attn GOP: Senate has confirmed 17 #SCOTUS justices in presidential election years. #DoYourJob,” in a statement on Twitter.

Zachary Stieber contributed to this report.

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