Amid rumors of potential Supreme Court vacancies, Senate Majority Leader Mitch McConnell (R-KY), among other top Republicans, has made it clear that he would work with President Donald Trump to fill any open seat prior to the election in November.
However, there is at least one GOP senator who is not on board: Sen. Lisa Murkowski (R-AK) suggested that nominating a replacement justice this year would involve a “double standard” that she simply “would not support,” the Washington Examiner reported.
Double standard alleged
The purported “double standard” Murkowski referenced, and the reason this is even an issue of discussion at all, stems from the manner in which McConnell and the GOP-controlled Senate in 2016 refused to entertain the nomination of Judge Merrick Garland to the high court. Garland was chosen by then-Democratic President Barack Obama as a candidate to replace the late Justice Antonin Scalia, a Republican appointee.
McConnell’s reasoning at the time, which remains consistent to this day, was that when the Senate and the White House are controlled by different parties, voters ought to have the final say on what occurs and confirmation of a Supreme Court nominee is inappropriate.
It appears that Murkowski has disregarded McConnell’s plain explanation of the circumstances, as she mistakenly invoked the Garland scenario as her reason to not support a potential nomination to the Supreme Court if a vacancy should arise between now and Election Day.
“I would not support it”
When asked by a reporter for The Hill about filling a potential vacancy either before the election or during the brief lame-duck session afterward, Sen. Murkowski made it clear that she would not support such an effort.
“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,” the senator said. “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.”
“So I would not support it,” she added.
Again, Murkowski is either ignoring or has forgotten about McConnell’s straightforward reasoning for why Garland’s nomination did not proceed but a nomination this year would, and it all boils down to whether the same party controls both sides of the nomination process or if power is split at the time of a vacancy.
Axios reported in February on McConnell’s rationale during an interview with Fox News’ Bret Baier in which the Senate leader said, “You’d have to go back to the 1880s to find the last time a vacancy on the Supreme Court, occurring during a presidential election year, was confirmed by a Senate of a different party than the president.”
“That was the situation in 2016. That would not be the situation in 2020,” he continued. “I’m not aware of any vacancies, but if you’re asking me a hypothetical about whether this Republican Senate would confirm a member of the Supreme Court to a vacancy created this year — yeah, we would fill it.”
To be sure, there is no telling if there even will be a vacancy on the high court prior to the election this year, so this debate could be a moot point. But if a seat on the bench does come available, it appears that McConnell cannot rely on Murkowski’s support — no real shocker there — in an effort to fill that spot.