Murkowski Says No Supreme Court Confirmation In 2020

Law360 (August 3, 2020, 6:43 PM EDT) -- In the first public break from the Senate majority leader's vow to fill any U.S. Supreme Court vacancy that arises in 2020, Republican Sen. Lisa Murkowski has said it's too late in a presidential election year for a high court confirmation.

Murkowski, R-Alaska, said she would not support a confirmation if a seat opened at the high court because it would be a "double standard," given Senate Republicans' decision not to consider President Barack Obama's nomination of D.C. Circuit Judge Merrick B. Garland after Justice Antonin Scalia died in February 2016.

"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 newspaper in an article published Monday. "So I would not support it."

Two other Republican senators who sometimes break with the party, Susan Collins of Maine and Mitt Romney of Utah, declined to address the hypothetical question. Spokespeople for the three senators did not respond to requests for comment Monday.

Sen. Chuck Grassley, R-Iowa, chaired the Judiciary Committee in 2016 and decided not to hold a confirmation hearing for Judge Garland. Grassley no longer leads the panel and said it would be up to the current leader, Sen. Lindsey Graham, R-S.C. However, he told The Hill, "In the abstract, I would do the same thing in 2020 that I would in 2016." He also told NBC that he "couldn't move forward with it" if he still led the panel.

Majority Leader Mitch McConnell, R-Ky., said in 2016 that tradition did not support filling a high court vacancy that opened in a presidential election year. More recently, he said any opening in 2020 should be filled because the same party controls the Senate and the White House, unlike four years ago.

Senators are increasingly facing questions about the confirmation process. While no voluntary retirements are anticipated this year, liberals have watched with concern as Justice Ruth Bader Ginsburg, 87, has been hospitalized several times this year and last month disclosed that she's undergoing chemotherapy after her liver cancer returned.

Advocates note that it would take more than one Republican to derail the confirmation process. The party controls 53 of 100 seats; Republicans only need 50 "aye" votes because Vice President Mike Pence could break a tie.

Meanwhile, Murkowski has unusual latitude to buck her party. In 2010, after a Tea Party candidate defeated her in the state's GOP primary, she beat that Republican and the Democratic nominee to become the first U.S. senator in more than half a century to win election as a write-in candidate.

The Alaskan's opposition did not stop Justice Brett Kavanaugh's confirmation in 2018, Mike Davis of the conservative Article III Project pointed out, and the Senate Republicans have gained two seats since then.

Another right-leaning court-watcher, John Malcolm of the Heritage Foundation, said Murkowski's stance was not cause for alarm on the right.

"If three more Republican senators decide to join her, then it will be big deal," he told Law360 in an email. "Although other senators, such as Mitt Romney and Susan Collins, have said that they are still thinking about this, so far as I am aware, nobody else has come out against confirming another justice right away should a vacancy arise."

Malcolm added that a confirmation would be less likely if Democratic nominee Joe Biden won the presidential election and a Supreme Court seat opened in the nearly three months between Election Day and Inauguration Day.

With several vulnerable Republican senators fighting for reelection, liberals want to use a hypothetical vacancy on the campaign trail.

The progressive group Demand Justice said in a news release that Murkowski's position "highlights the hypocrisy of McConnell's position and the difficult position it would put his more vulnerable members in."

"I think this is a question for every senator up in 2020," Daniel Goldberg of the Alliance for Justice Action Campaign told Law360. "Their voters need to know: Will they rubber-stamp, before an election, another Trump judge?"

Requests for comment were not returned Monday by spokespeople for vulnerable Republicans up for reelection — including Cory Gardner of Colorado, Martha McSally of Arizona and Thom Tillis of North Carolina — or Sen. Joe Manchin of West Virginia, the lone Democrat to vote for Justice Kavanaugh's confirmation.

--Editing by Bruce Goldman.

For a reprint of this article, please contact reprints@law360.com.

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