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Senate GOP Faces Split On Supreme Court Vacancy

Senate Majority Leader Mitch McConnell (center), R-Ky., speaks to members of the media as fellow Republican Sen. John Barrasso of Wyoming (left) and Senate Majority Whip John Cornyn of Texas (right) listen after the Republican weekly policy luncheon on Jan. 20.
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Senate Majority Leader Mitch McConnell (center), R-Ky., speaks to members of the media as fellow Republican Sen. John Barrasso of Wyoming (left) and Senate Majority Whip John Cornyn of Texas (right) listen after the Republican weekly policy luncheon on Jan. 20.

When Congress returns from recess next week, it will be the first time since Justice Antonin Scalia's death for Senate Republicans to hash out face-to-face exactly what they're going to do about the newest Supreme Court vacancy. And rumblings from Republican senators dispersed across the country right now suggest next week could be the beginning of a heated family conversation.

To make it very clear, Mitch McConnell — as the chamber's majority leader — will get the last word on whether any Supreme Court nominee receives a confirmation vote in the Senate. And hours after news broke of Scalia's death, McConnell made his desires quite clear. He blasted out a written statement unequivocally declaring that the vacancy "should not be filled until we have a new president."

But ever since McConnell spelled out his position last Saturday, some of his Republican colleagues have wondered out loud how far they should go. There are, after all, several ways to keep an Obama nominee from ascending to the court. Should Senate Republicans refuse to let the confirmation process even begin? Or should the Judiciary Committee hold hearings and vote down the nominee at the committee level? Or, should Senate Republicans band together later on the floor to filibuster, or block, the nominee from proceeding to a final up-or-down vote?

The differences between these approaches may be meaningful. A no-hearings-no-votes approach could harden the obstructionist image that Republicans — particularly those vulnerable in 2016 – want to shake. But the caucus can't alienate the party's base, which wants Senate Republicans to staunchly hold the line on this one.

And there seems to be some disagreement among Republicans about how to thread the needle.

Senate Judiciary Chairman Chuck Grassley suggested earlier this week he wouldn't rule out holding hearings on a Supreme Court nominee this year.

"I would wait until the [nomination] is made before I would make any decisions," Grassley said, according to Radio Iowa. "This is a very serious position to fill and it should be filled and debated during the campaign and filled by either Hillary Clinton, Sen. Sanders or whoever's nominated by Republicans."

Grassley said he would "take it a step at a time."

But when the Iowa senator was asked to clarify that position at a town hall meeting in Tama County, Iowa, this week, he referred back to a written statement he sent last Saturday, in which he had insisted "it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice."

At the Tama County town hall meeting, Grassley maintained he still stood by those words.

"I made a very clear statement, and I don't know whether it will hold. It will hold as far as I'm concerned, until I'm overruled, that we should put it off until after the election," he said.

Other Senate Republicans have been more explicitly supportive of holding hearings on a nominee, even if they would later reject him or her.

Wisconsin Republican Ron Johnson, who is facing a tough fight for re-election, had quickly stepped up to back McConnell last weekend, but he then appeared to modify that position Tuesday during an interview with a local radio show.

"I've never said that I wouldn't vote, or that we shouldn't vote. ... I have no idea how the process plays out. I'm not in control of it. I'm not the majority leader. I'm not the chairman of the Judiciary," Johnson said on WTAQ. "By the time I would actually take the vote, if it comes to that, I'll take a vote."

But when interviewed on NPR Thursday, Johnson said if the Senate ends up not voting on a nominee, it would have still fulfilled its advise and consent role.

"I don't know how the process plays out. I'm not in control of it. But the consent phase would be whether we decide to hold hearings or not hold hearings, whether we have a vote, whether we vote up or down. But not acting is also acting," said Johnson on NPR's All Things Considered. "It's also fulfilling that consent portion of our advise and consent."

Alaska Republican Lisa Murkowski told reporters in Juneau on Wednesday that she thinks a confirmation process should begin.

"I do believe that the nominee should get a hearing," Murkowski said. "That doesn't necessarily mean that that ends up in a vote. The purpose of the hearing is to determine whether or not this individual, based on their record ... should be named to the highest court in the land."

Nevada Republican Dean Heller went even further, saying that the Senate should vote on a nominee.

"The chances of approving a new nominee are slim, but Nevadans should have a voice in the process," Heller said in a statement to Politico Wednesday. "That's why I encourage the President to use this opportunity to put the will of the people ahead of advancing a liberal agenda on the nation's highest court."

Other Republicans spoke of optics. Thom Tillis of North Carolina, who sits on the Judiciary Committee, said Tuesday on the Tyler Cralle Show that Republicans would "fall into the trap of being obstructionists" if his caucus resolved to reject any nominee before the president had even made a selection.

And Maine Republican Susan Collins spoke of duty.

"More than any other appointment upon which the Senate is called to pass judgment, nominees to the Supreme Court warrant in-depth consideration given the importance of their constitutional role and their lifetime tenure. Our role in the Senate is to evaluate the nominee's temperament, intellect, experience, integrity and respect for the Constitution and the rule of law," Collins said in a written statement, according to Politico.

This piece was updated at 6:10 PM on Thursday, Feb. 18, to include an additional quote from Sen. Ron Johnson.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Ailsa Chang is an award-winning journalist who hosts All Things Considered along with Ari Shapiro, Audie Cornish, and Mary Louise Kelly. She landed in public radio after practicing law for a few years.
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