Senators appear to change stances on confirming successor to Ginsburg vs. Scalia, but argue 2020 is different

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The 2016 presidential election happened as a seat on the Supreme Court was at stake following the death of a justice — that will be the case yet again in 2020 after Justice Ruth Bader Ginsburg, the face of the liberal bloc on the Supreme Court and a trailblazer for women’s rights, died on Friday.

In 2016, the vacancy was for Justice Antonin Scalia’s seat, and Senate Majority Leader Mitch McConnell, R-Ky., used his caucus’ numbers to hold the seat open until after the presidential election, saying Americans should have a say in who chooses Scalia’s successor. That led to the confirmation of Trump nominee Justice Neil Gorsuch.

Senate Judiciary Committee Ranking Member Dianne Feinstein, D-Calif., at the time told Republicans “to do their job” and give then-President Barack Obama nominee Merrick Garland “full and fair consideration.”

SUPREME COURT JUSTICE RUTH BADER GINSBURG DEAD AT 87

Now in 2020 the roles are reversed.

McConnell has indicated that he intends to have the Senate vote on a nominee from President Trump. Feinstein said that “under no circumstances” should the vacancy opened by Ginsburg’s death be filled before the January inauguration.

Feinstein argues things are the same now as they were in 2016.

“Merrick Garland was nominated to fill Scalia’s seat on March 16, 2016 – 237 days before the presidential election. Today, we’re just 46 days away from an election,” she said in a statement Friday. “To jam through a lifetime appointment to the country’s highest court – particularly to replace an icon like Justice Ginsburg – would be the height of hypocrisy.”

TOP JUDICIARY DEM FEINSTEIN: RBG SUCCESSOR SHOULD ‘UNDER NO CIRCUMSTANCES’ BE CONFIRMED BEFORE INAUGURATION’

McConnell says things are different.

“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,” the majority leader said. “We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”

He added: “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.”

McConnell and Feinstein are fundamentally aiming to ensure the next justice the Senate confirms is nominated by a president from their party. But their arguments for whether precedent is on their side — and about who is acting hypocritically — are likely to take center stage in the next few months. And the pair of powerful senators are far from the only ones apparently changing their tunes from 2016.

Another is Sen. John Thune, R-S.D., the Republican whip in the Senate. He said in 2016 that the Republican Senate “was elected to be a check and balance on President Obama. The American people deserve to have their voices heard on the nomination of the next Supreme Court justice, who could fundamentally alter the direction of the Supreme Court for a generation. Since the next presidential election is already underway, the next president should make this lifetime appointment to the Supreme Court.”

On Friday Thune said: “While tonight the nation rightly mourns, we’ll soon turn to the Senate’s constitutional role in this process. 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. 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.”

Senate Minority Leader Chuck Schumer, D-N.Y., changed his tune as well.

“Garland has integrity, a brilliant legal mind & is a perfect fit for #SCOTUS,” he tweeted in 2016. “GOP inaction does our country a great disservice. #DoYourJob.”

WHAT MITCH MCCONNELL DID IN THE IMMEDIATE AFTERMATH OF JUSTICE SCALIA’S DEATH

Schumer on Friday, however, said that the vacancy created by Ginsburg’s passing shouldn’t be filled until there is “another president,” likely meaning the Senate should not act until after the January presidential inauguration.

“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,” he said.

Others have changed their attitudes as well, but at least one senator has already doubled down on the same position she held in 2016.

Sen. Lisa Murkowski, R-Alaska, a moderate and a swing vote on many judicial nominations, said before Ginsburg’s death that she would not support action on a Supreme Court nomination before the presidential election.

“I would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election,” she told Alaska Public Media.

That statement matches her 2016 stance that a justice should not be confirmed before the election.

“[G]iven the timing of this vacancy, in the middle of a Presidential election and in an increasingly toxic political environment, I had urged the President to refrain from naming a nominee,” Murkowski said in 2016. “I believe he should have left that task to the next administration. Vice President Joe Biden, during his time in the Senate, advised that consideration of a Supreme Court nominee should be put off until after the election is over, because the thoughtful consideration that a Supreme Court nominee deserves simply cannot occur at the height of a political season. I find a great deal of wisdom in those words, because in my judgment they accurately describe what is already happening with regard to this election-year nomination.”

Meanwhile, Sen. Susan Collins, R-Maine, was one of the few Republicans in 2016 to say that the Senate should consider Garland.

“The meeting left me more convinced than ever that the process should proceed. The next step, in my view, should be public hearings,” she said. Collins on Friday did not indicate her thoughts on whether the Senate should process a Trump nominee.

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Notably silent on the issue of whether or not there should be a vote on a replacement for Ginsburg as of Friday evening, however, are multiple Republican senators who are currently up for reelection in competitive races and in 2016 said that the Senate should wait until after the presidential election to confirm a nominee.

Among these are Sens. Thom Tillis, R-N.C.; Joni Ernst, R-Iowa; Cory Gardner, R-Colo.; Steve Daines, R-Montana; and Senate Judiciary Committee Chairman Lindsey Graham, R-S.C.

The Supreme Court vacancy, which if filled by Trump, has the potential to fundamentally alter the balance of the court, is likely to spur tens of millions of dollars in political spending and will alter the complexion of the presidential election and many Senate races.

Fox News’ Jon Decker contributed to this report. 

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