President Trump said he would “absolutely” fill a Supreme Court vacancy should an opportunity present itself before the election.
During a Tuesday radio interview, conservative host Hugh Hewitt asked Trump if he was willing to fill a vacancy on the high court amid speculation that both conservative and liberal justices may retire, to which Trump responded in the affirmative.
“First serious question, in the last five months of this term, for the last five months of your second term, if you get one, would you make a nomination to fill a vacancy that occurred on the Supreme Court?” Hewitt asked.
“Absolutely, I’d do it. Sure. It depends. … You know, I don’t know what you’re talking about, time, but if you’re talking about if something would happen now, no, I would move quickly. Why not? I mean, they would. The Democrats would if they were in this position. But you know, I’ll be interested,” Trump said in response.
Senate Republicans are grappling with whether or not they would fill a vacancy on the high court before November. Some Republicans, such as Sen. Lisa Murkowski, feel the GOP should adhere to a 2016 precedent set by Senate Majority Leader Mitch McConnell, which prevented a Supreme Court confirmation during an election year.
“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 said in early August. “So, I would not support it.”
Garland, a judge on the U.S. Court of Appeals for the D.C. Circuit, was President Barack Obama’s nominee in 2016 to replace the late conservative Justice Antonin Scalia. However, McConnell declined to allow the Senate to vote on his nomination, saying the new president should have the ability to fill the vacancy.
However, McConnell has said that he expects the Senate would fill a Supreme Court vacancy should the vacancy arises.
“Oh, we’d fill it,” the Kentucky Republican told the Hill earlier this month.
During an appearance on Fox News in February, McConnell also said that filling the vacancy would be consistent with his decision to block a vote on Garland in 2016.
“I said you’d have to go back to the 1880s to find the last time a vacancy on the Supreme Court, occurring during a presidential election year, was confirmed by a Senate of a different party than the president. That was the situation in 2016. That would not be the situation in 2020,” he said.
Other Republicans, including Sens. Mitt Romney and Susan Collins, have declined to entertain the scenario, as none of the justices on the high court have made any announcements on the matter.
Some conservatives have speculated liberal Associate Justice Ruth Bader Ginsburg, 87, may soon retire. Ginsburg has battled a series of illnesses as a justice but has maintained her judicial duties. In September 2019, she had a malignant tumor removed. In 1999 and 2009, she was treated for colon cancer and pancreatic cancer, respectively. In May, Ginsburg was hospitalized to receive nonsurgical treatment for a gallbladder infection but still heard oral arguments from her hospital bed. And in July, she was discharged from the hospital after receiving treatment for a possible infection.
In early July, Hewitt himself said he has heard rumors that conservative Associate Justice Samuel Alito, nominated by President George W. Bush, may retire. However, some lawmakers, including Texas Sen. Ted Cruz, said they don’t buy into the rumors.
“I don’t think it’ll happen. I’ve heard the same rumors. There’s chattering, and actually, to be fair, every June and July, Washington is sort of consumed by those chattering rumors. So, the Supreme Court term comes to an end, and everyone is like, ‘All right, is there going to be a vacancy?'” he told the Washington Examiner in July.
