“We’re going to fill it” if there is one, said Sen. John Barrasso (R-Wyo.), the No. 3 GOP leader. “With Justice Scalia … people might not have thought he was the one, because he wasn’t the oldest at the time. You just never know.”
So in what’s already been the most consequential year for politics in a generation, with a presidential impeachment and a rampaging pandemic, Capitol Hill could get significantly crazier.
“If you thought the Kavanaugh hearing was contentious this would probably be that on steroids,” said Sen. John Cornyn (R-Texas). “Nevertheless, if the president makes a nomination then it’s our responsibility to take it up.”
While no one says they expect a Supreme Court vacancy, GOP senators also acknowledge it’s plausible that Trump could find himself with a third nominee. And one thing is clear: Most Republicans have no qualms about approving a Supreme Court pick from a president in their own party, even if it is an election year.
In 2016, Senate Majority Leader Mitch McConnell (R-Ky.) said voters should decide in the election which president should choose the next Supreme Court justice. But in the Trump era, he’s repeatedly asserted that he would fill a vacancy in 2020.
McConnell and his allies argue the situation is different because Republicans control both the White House and the Senate. They say that makes the situation far different than when Obama was president and McConnell refused to even hold a hearing for Merrick Garland.
Democrats acknowledge they could get run over in the next eight months. Supreme Court nominees can now be confirmed by a bare majority after McConnell changed the rules in 2017 to overcome a Democratic filibuster of Neil Gorsuch, Antonin Scalia’s successor.
“They’re not troubled by inconsistencies,” said Sen. Tim Kaine (D-Va.). “It would be completely inconsistent with everything that was said [in 2016]. But we knew when they were saying it they didn’t mean it. We knew that was a situational answer.”
The remaining months of Trump’s first term could also be the last chance the GOP has to put its stamp on the courts for years to come. McConnell could lose his majority or Trump could be ousted by former Vice President Joe Biden — which means Republicans would take no chances and move quickly to fill an empty seat on the high court.
“My guess is yes. That’s ultimately a decision the leader makes. But I think you’ve heard him speak to the subject before. He believes if there was a vacancy, he’d fill it,” said Sen. John Thune of South Dakota, the GOP whip. “Confirmation hearings in the age of COIVD-19 would be very interesting but I’m sure no less contentious than the last one.”
Republican senators are not publicly pushing for a vacancy nor are they advertising their plans to fill any that presents itself. However, the last two vacancies occurred in election years. And Trump already has a list of potential Supreme Court picks.
In a brief interview, Senate Judiciary Chairman Lindsey Graham (R-S.C.) declined to say there was a cut-off to when a new vacancy might be considered. His predecessor, Sen. Chuck Grassley (R-Iowa), declined to hold a hearing for Garland.
Sen. Roy Blunt (R-Mo.) said a Supreme Court opening represents the “ultimate hypothetical” — but one Republicans would be prepared to respond to whenever it occurs.
“There’s no cut off,” said Blunt, the No. 4 GOP leader.
In addition to Ginsburg’s health, senators are also keeping tabs on whether any other justices will retire. Four justices are 70 or older: Ginsburg, Stephen Breyer, Clarence Thomas and Samuel Alito.
When Anthony Kennedy retired in 2018 and sparked the confirmation fight over Justice Brett Kavanaugh, he made his announcement in late June after the spring term concluded. That allowed the Senate GOP to confirm Kavanaugh before midterms that threatened their majority.
Sen. Josh Hawley (R-Mo.), a former Supreme Court clerk, said he had heard no inside chatter about an impending vacancy. But he said that given the age of the court’s current members, “you have to be prepared.”
“I would be very surprised if we didn’t move forward with hearings and try to fill the seat. I’m sure it would be very controversial, principally because of the balance of the court,” Hawley said. “If it’s replacing someone like Justice Ginsburg, that would be a big shift, that would be a big deal.”
In that hypothetical scenario, the GOP would need the support of 50 of its 53-member majority to fill a vacancy. Vice President Mike Pence can cast a tie-breaking vote.
Still, at least one Republican senator believes the approaching election should weigh on any decision to fill an empty seat.
“You’re coming pretty close, though, to the presidential election,” said Sen. Lisa Murkowski (R-Alaska), the only Republican to oppose Kavanaugh. “That is something that you factor into these discussions about how we move forward.”