Democrat lawmakers are warning Republicans against filling a Supreme Court vacancy this year after Republicans ignored former President Barack Obama’s nomination of Judge Merrick Garland. At the time, Republican leadership stated that “the American people should have a say in the court’s direction” given 2016’s status as a presidential election year.
However, Sen. Lindsey Graham (R-SC), chair of the Senate Judiciary Committee, has warned that “the rules have changed” following the left’s treatment of Justice Brett Kavanaugh during his contentious confirmation process.
Following the death of the late Justice Antonin Scalia, Senate Majority Leader Mitch McConnell (R-KY) solidified his position that the next Supreme Court justice should be nominated by the next president with the election just months away.
“It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent,” McConnell said at the time.
Ultimately, the Senate did not hold any proceedings for Garland, effectively voiding his nomination.
While there is no current vacancy on the Supreme Court, the continued health struggles of Justice Ruth Bader Ginsburg — her “recurrence of cancer,” specifically — have Democrat lawmakers on edge.
“We knew basically they were lying in 2016, when they said, ‘Oh, we can’t do this because it’s an election year.’ We knew they didn’t want to do it because it was President Obama,” Sen. Tim Kaine (D-VA) said, according to NBC News.
“If they show that they’re unwilling to respect precedent, rules, and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability,” the former Hillary Clinton running mate continued.
“I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that,” he warned.
Sen. Mazie Hirono (D-HI) stated that she has been discussing structural reforms for the courts, including expanding the number of justices sitting on the Supreme Court.
“Regardless of whether they try to do it or not, there have already been discussions about what we can do with our courts to make them much more balanced in many ways,” Hirono said, stating that the majority of judges are “white, male, young, with a particular orientation, ideological orientation.”
Democrats are expected to address the courts in their official party platform, endorsing what has been described as “structural court reforms to increase transparency and accountability.”
According to NBC:
The draft language, reviewed by NBC News and expected to be approved later this month, denounces Republicans as having “packed our federal courts with unqualified, partisan judges who consistently rule for corporations, the wealthy, and Republican interests” and for “blocking a Democratic president from appointing a justice to the Supreme Court.”
Meanwhile, Graham has signaled that the Judiciary Committee will move forward with a nomination in the event of a Supreme Court vacancy prior to the election, citing the left’s treatment of Justice Kavanaugh.
“Yeah. We’ll cross that bridge. After Kavanaugh, the rules have changed as far as I’m concerned,” Graham said, according to the outlet.
“We’ll see what the market will bear if that ever happens,” he added.
Worries over the potential of a vacancy renewed last month after Ginsburg, 87, announced she was undergoing chemotherapy to treat a “recurrence of cancer” on her liver.
“Immunotherapy first essayed proved unsuccessful. The chemotherapy course, however, is yielding positive results. Satisfied that my treatment course is now clear, I am providing this update,” she said.
The current treatment, Ginsburg said at the time, was yielding positive results. A July 7 scan revealed “significant reduction of the liver lesions and no new disease.”
“I have often said I would remain a member of the Court as long as I can do the job full steam,” Ginsburg said. “I remain fully able to do that.”
Ginsburg, who has battled a handful of bouts with cancer over the past 20 years, found herself back in the hospital last week for what was described as a “minimally invasive non-surgical procedure” to “revise a bile duct stent that was originally placed at Sloan Kettering in August 2019.”
Despite Graham’s stance, former Judiciary Committee chairman Sen. Chuck Grassley (R-IA) indicated that he would not support filling a Supreme Court vacancy prior to the 2020 election were he still chairman of the committee.
“My position is if I were chairman of the committee I couldn’t move forward with it,” he told CNN.
Sen. Josh Hawley (R-MO), a member of the Judiciary Committee, added that a potential vacancy would reflect a “different set of circumstances.”
“We have a President who is very actively running for reelection,” Hawley told CNN. “He’s going to be on the ballot. People are going to be able to render a verdict on him like they couldn’t on Obama. My guess is he would absolutely nominate somebody. I would be shocked if he didn’t.”
President Trump has, thus far, nominated two Supreme Court justices to the Court — Justices Kavanaugh and Neil Gorsuch — and appointed “nearly 200 other judges with lifetime appointments to lower federal courts,” according to Pew Research. Pew Research found that Trump has appointed nearly a quarter of all active federal judges, 194, in his first term. Former President Barack Obama still holds the largest share of all active judges, 39 percent.