Supreme Court Justice Ruth Bader Ginsburg was discharged from Baltimore’s Johns Hopkins hospital on Wednesday evening after having been treated for an infection in her gallbladder.
Ginsburg is “doing well and glad to be home,” according to a spokeswoman for the Court, but that hasn’t stopped some Republicans in the Senate from considering what they might do if her seat (or even somebody else’s) were suddenly to become vacant.
Such considerations are typically considered uncouth and not expressed out loud, but GOP lawmakers on Capitol Hill spoke to Politico about whether they would act on the vacancy should the worst happen.
“We’re going to fill it,” Sen. John Barrasso, the Republican’s third-ranking member, said of Ginsburg’s seat.
Sen. John Cornyn of Texas agreed, noting that it’d be a controversial process, but one they’d attempt to carry out anyway.
“If you thought the [Brett] Kavanaugh hearing was contentious, this would probably be that on steroids,” Cornyn explained. “Nevertheless, if the president makes a nomination then it’s our responsibility to take it up.”
The move to fill any vacant Supreme Court seat that might come up between now and November would be viewed by many as hypocritical. Republicans stood in the way of former President Barack Obama nominating Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia. The vacancy occurred in February 2016, when there were still 11 months in Obama’s term remaining, and Garland’s nomination was officially made in March.
The justification back then for their not allowing Obama’s nominee to be considered was that it was a presidential election year.
“Let’s let the American people decide,” Senate Majority Leader Mitch McConnell said at the time. “The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”
If a vacancy occurred today, it would be a shorter timeline than the one Republicans justified blocking in 2016 — there are just eight months until inauguration day 2021. Yet, Republicans don’t seem to show any concern about remaining true to principles they espoused just four years ago.
Sen. Chuck Grassley may be the one exception, although he hasn’t weighed in on the situation in recent days like others in his party have. In 2018, when asked about a hypothetical situation involving a vacancy occurring in 2020, Grassley, who was then the chairman of the Senate Judiciary Committee, said he wouldn’t consider a new nominee by President Donald Trump.
However, Grassley is no longer the chairman of that committee — staunch Trump ally Sen. Lindsey Graham is, and when pressed this week to give his opinion on what should be done if a vacancy occurs, he was mum on the matter.
McConnell, meanwhile, has definitely changed his tune. In February of this year, the Majority Leader took a hypocritical stance instead of a consistent one.
“If you’re asking me a hypothetical about whether this Republican Senate would confirm a member of the Supreme Court due to a vacancy created this year — yeah, we would fill it,” he said.
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