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Republicans Say They'll Vote On Trump's Supreme Court Nominee Even If He Loses The Election

“Let’s be honest here. There’s a Republican majority in the Senate with a Republican president. The Democrats would do the same thing.”

Posted on September 21, 2020, at 8:02 p.m. ET

Stefani Reynolds / Getty Images

Senate Majority Leader Mitch McConnell arrives at the Capitol, Sept. 21.

WASHINGTON — Senate Republicans say they will proceed with a vote on President Donald Trump’s nominee to the Supreme Court even if it takes place after Trump loses the presidential election.

Several Republicans said Monday that a confirmation, under those circumstances, would still be legitimate because Trump would remain president until January even if Joe Biden wins.

“He’s still president of the United States until Jan. 20. What’s illegitimate?” said Sen. Richard Shelby of Alabama. “You’ve got the power now. Why don’t you exercise it? That’s what we plan to do.”

Republicans differed when asked how they square this approach to 2016, when the GOP-controlled Senate refused to advance the nomination of then-president Barack Obama’s Supreme Court pick, Merrick Garland. At the time, Senate Majority Leader Mitch McConnell justified blocking a nominee in an election year by saying “the American people should have a voice in the selection of their next Supreme Court justice.” Some Republicans said on Monday that this year is a fundamentally different situation because the same party controls both the Senate and the White House, as opposed to split control in 2016.

Others offered a more blunt defense.

“Let’s be honest here. There’s a Republican majority in the Senate with a Republican president. The Democrats would do the same thing,” said Sen. Deb Fischer of Nebraska.

That line — the Democrats would do it if they were in our shoes — was a common refrain as senators returned to Washington, DC, for the first time since Ruth Bader Ginsburg’s death on Friday. “All I can tell you is, I think if the Democrats were in the same spot they’d be doing exactly what it looks like the timetable is going to be,” said Indiana Sen. Mike Braun in one example.

Democratic Sen. Chris Murphy said this was also what Republicans told him during in-person conversations on the Senate floor.

“I just went up and talked to a bunch of them, just to have them explain it to me, and that was their line,” he said. “So that’s what they’re saying privately as well as publicly. It’s the only justification they have because they can’t defend what they said, right?”

Senate Minority Leader Chuck Schumer denounced the GOP arguments as “pathetic” and “enough to make your head explode,” but he and his party are powerless to stop the nomination from going forward. It would take four Republican senators to break from their party to block the nomination. Only Sens. Susan Collins and Lisa Murkowski have said the process should be paused until after the election. The vast majority of others have signaled they want the confirmation process to move ahead.

Trump is expected to announce his nominee to fill Ginsburg’s seat sometime this week. It’s not clear whether that person will get a confirmation vote before the Nov. 3 election or afterward in a possible lame-duck session if Trump loses.

Florida Republican Sen. Marco Rubio also said he would be open to voting for Trump’s nominee in a lame-duck session even if the president loses to Biden.

“His presidency, even though it’s his first term — it doesn’t end on Election Day with respect to the outcome. He’s still, for example, the commander in chief of the Armed Forces,” said Rubio. “If it’s a qualified judge that I would otherwise support, I’m going to support them.”

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