GOP sends Biden warning shot on future Supreme Court vacancies

Senate Republicans are refusing to say if they would fill a future potential Supreme Court vacancy during President Biden’s remaining tenure in a warning shot to the White House as the GOP aims to take back control of Congress after the midterms.

Comments from Sen. Lindsey Graham (R-S.C.) about how a GOP-controlled Senate would approach Biden judicial nominees is intensifying questions about whether Republicans would refuse a high court pick from the Democratic president should the GOP control the chamber in 2023.

That notion would mark a major escalation of the long-running, and increasingly antagonistic, judicial wars that have rocked the Senate.

Senate Minority Leader Mitch McConnell (R-Ky.), who would be majority leader again if Republicans took back the chamber, is so far refusing to tip his hand.

“I’m not going to go forward with any prediction on what our strategy might be should we become the majority,” McConnell said when asked about a potential vacancy in 2023 or 2024.

McConnell has indicated previously that it would be “highly unlikely” that Republicans would fill a Supreme Court vacancy that occurred in 2024, the next presidential election year, after refusing to give Merrick Garland, former President Obama’s final Supreme Court nominee, a hearing in 2016.

Democrats signaled that they believed McConnell would be willing to keep a seat vacant if that occurred under a Democratic president.

“It seems to me that Sen. McConnell is determined to change the composition of the court … to make it an eight member court if there’s any vacancy under a Democratic president,” said Sen. Dick Durbin (Ill.), the No. 2 Senate Democrat.

McConnell sparked fierce backlash, and years-long grievances, when he refused to have even a hearing for Garland a hearing, arguing that it was in line with how Supreme Court nominees have been treated during prior presidential election years when the White House and the Senate were controlled by different parties.

But Republicans would likely face intense pressure from outside groups and Democrats to take up a nomination if a Supreme Court vacancy occurred in 2023, which is not an election year.

It’s less clear if that pressure would come from within the Senate GOP caucus as several Republicans, including McConnell allies and members of the Judiciary Committee, declined to say if they would support filling a vacancy next year.

“I think we just have to see what the circumstances are,” said Sen. John Cornyn (R-Texas), a McConnell ally.

Asked if he supported filling a Supreme Court vacancy in 2023, Sen. Josh Hawley (R-Mo.), a member of the committee, said “I imagine this would be a moot point if we’re not in the majority.”

The question jumped back into the spotlight after Graham, during a Judiciary Committee meeting this week, warned that Biden’s judicial nominees would get tougher scrutiny under a GOP-controlled Senate.

“If we get back the Senate and we’re in charge of this body and there is judicial openings, we will talk to our colleagues on the other side. But if we were in charge, she would not have been before this committee. You would have had somebody more moderate than this,” Graham said.

Graham told The Hill that he wasn’t trying to imply that a GOP-controlled Senate wouldn’t take up any Supreme Court nominations by a Democratic president, but that Biden would have to consult more with Republicans if they control the chamber.

“We’ll go back to the old system of collaboration, basically. … When you don’t own the Senate, and the president’s of the opposite party, we’ve got to come up with some kind of way to work together,” Graham said.

But asked if he would support filling a Supreme Court vacancy if one occurs next year, Graham said: “I don’t know. We’ll just cross that bridge when we get there.”

Republicans view judicial nominees as a top priority and one that is on the ballot this year with control of both the House and Senate chambers up for grabs. And they are vowing tougher scrutiny of judicial nominees by Biden if they win back the chamber.

Though Supreme Court nominations used to clear the Senate with wide bipartisan margins, legislative fights have become increasingly partisan in recent years.

Senate Republicans nixed the 60-vote legislative hurdle for Supreme Court nominees in 2017, following a decision by Senate Democrats to get rid of the higher threshold for lower-court nominees.

Former President Trump’s nominee faced pushback from Democrats.

Only three Democratic senators voted for Neil Gorsuch’s Supreme Court nomination, while only one — Sen. Joe Manchin (D-W.Va.) — voted for Brett Kavanaugh, who faced sexual assault allegations that he denied. No Democratic senator voted for Amy Coney Barrett, who was confirmed days before the 2020 presidential election.

Now, only three Republicans are voting for Jackson, underscoring the lift Biden could face if he gets another chance at naming a Supreme Court justice next year and Republicans controlled the Senate.

Sen. Lisa Murkowski (Alaska), one of those three Republicans, declined to say if she would support filling a 2023 Supreme Court vacancy — saying she didn’t want to jinx a sitting justice.

But she appeared to question if a Senate controlled by a different party than the White House would still confirm nominees for the country’s high court.

“I don’t know. I don’t know. And think what that will do to the court. Think about the position that the legislative branch will put the judiciary in if we do not allow that to proceed. … It would mean that you would have a court that’s handicapped,” Murkowski said.

“We would be handicapping … out of political motivation,” Murkowski said. “Eventually you get to a place where you cannot confirm justices and they don’t live forever. … We’re heading in a place that I think is dangerous for the courts.”

If a vacancy occurs next year, Republicans are already sending signals to Biden to nominate someone more moderate if he wants a chance of getting a Supreme Court pick through a Republican-controlled Senate.

“What I can say with pretty great certainty is the president who ran as a moderate and who has governed as Bernie Sanders would, would have to spend the last two years of his term being a moderate,” McConnell said, referencing the liberal senator from Vermont.

Sen. Thom Tillis (R-N.C.), a member of the Judiciary Committee, said Biden should factor in a GOP-controlled Senate when picking a nominee if Republicans win back the majority.

“I think the president needs to recognize that as a part of his calculation for qualified judges on the spectrum of their ideology,” Tillis said. “I think they should probably take that into account.”