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Manuel Balce Ceneta, Associated Press

US Supreme Court vacancy puts Mitt Romney in difficult spot

By Dennis Romboy, KSL | Updated - Sep. 21, 2020 at 5:24 p.m. | Posted - Sep. 21, 2020 at 4:32 p.m.



SALT LAKE CITY — Utah Sen. Mitt Romney is among a handful of Republican senators who will be under pressure to fall in line with party leadership over voting on a replacement for U.S. Supreme Court Justice Ruth Bader Ginsburg.

But, according to the senator’s office, Romney isn’t talking today.

Romney’s office fought off rumors over the weekend that the senator has committed to not vote to confirm a new Supreme Court nominee until after Inauguration Day in January.

“This is grossly false,” Romney spokeswoman Liz Johnson tweeted Saturday.

Sen. Mike Lee, R-Utah, who opposed moving forward on President Barack Obama’s replacement for the late Justice Antonin Scalia in 2016, issued a statement Monday on filling Ginsburg’s seat.

“In 2016, President Obama nominated a replacement for Justice Scalia and my Senate colleagues and I gave our advice and consent on the nominee, consistent with the Constitution, by rejecting him. This year, President Trump will nominate a replacement for Justice Ginsburg and, consistent with the Constitution, we will again give our advice and consent,” Lee said in a statement.

“If we like the nominee, we will confirm her. If we don’t, we won’t. It’s that simple.”

President Donald Trump said he would nominate a Supreme Court pick on Friday or Saturday, and has vowed that his choice would be a woman.

Senate Majority Leader Mitch McConnell said he intends to hold a vote on the president’s nominee before the election. With the GOP holding a 53-47 edge in the Senate, McConnell, R-Ky., can’t afford to lose more than three senators. Vice President Mike Pence would break a tie.

Four years ago, McConnell refused to hold a vote on President Barack Obama’s election-year pick, Merrick Garland, to replace the late Justice Antonin Scalia, who died nine months before the election.

Romney is in a difficult spot, but his decision is likely to be consequential, said Chris Karpowitz, co-director of the Center for the Study of Elections and Democracy at BYU.

“On the one hand, both partisan loyalty and the desire for a more conservative court might lead him to prefer a quick vote before the election or a vote during the lame duck period. On the other hand, Republicans are clearly vulnerable to the charge of hypocrisy on this issue, given the stance they took in 2016,” he said.

Romney has an opportunity to be a pivotal voter on the issue. His actions will either further intensify partisan rancor but lead to a more conservative justice, or help to calm partisan distrust and promote the long-term health of the advice and consent process but at the potential cost of a conservative justice, Karpowitz said.

Sen. Susan Collins, R-Maine, has already come out against voting before Election Day.

In a statement Saturday, she said the winner of the Nov. 3 presidential election should choose Ginsburg’s replacement. But she said she would not object to the Senate Judiciary Committee beginning to vet Trump’s eventual nominee.

“Given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election,” Collins said.

Sen. Lisa Murkowski, R-Alaska, also has said she would not vote to confirm a Supreme Court nominee so close to the election. She voted against the confirmation of Trump nominee Brett Kavanaugh in 2018.

Trump took a shot at Murkowski on Sunday in a tweet about an upcoming town hall she is holding. “No thanks!” the president tweeted.

In 2016, Lee, a member of the Senate Judiciary Committee, argued against the Senate holding hearings or voting on Garland.

“In light of the contentious presidential election already well underway, my colleagues and I on the Judiciary Committee have already given our advice and consent on this issue: We will not have any hearings or votes on President Obama’s pick,” he said.

Lee said at the time that the American people should have a voice in the selection through the presidential election.

“In my view, with the future of the Supreme Court now at stake, and the election for our next president already underway, it is the people who should determine what kind of Supreme Court they wish to have,” he said.

Lee said then that meeting with any nominee Obama put forward would be a waste of the Senate’s time.

“The president is entitled, of course, to discharge his own constitutional authority to nominate. But it is the Senate’s constitutional prerogative to withhold consent and protect the people’s voice,” he said in 2016.

As a senator in 1992, Democratic presidential nominee Joe Biden demanded that President George H. W. Bush wait until after the election to nominate to fill a Supreme Court vacancy. In 2016, Biden said he would go ahead with the confirmation process if he were head of the Judiciary Committee.

Over the weekend, the former vice president tweeted: “Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg.”

Karpowtiz said if Republicans move to fill Ginsburg’s seat now and are successful but the Democrats take the Senate and the presidency in November, the likelihood that Democrats will increase the number of seats on the court or take other more extreme measures to counter Republican actions increases.

The core question for Romney is how much importance he places on a functioning nominations process in which both parties are able to work together, he said.

“And this is a difficult question because the price could be a conservative court for decades, something that is obviously important to Republicans,” Karpowitz said. “But the healthy functioning of the nominations process, which has grown increasingly bitter and dysfunctional in recent years, is also vital to our constitutional system and ultimately to the legitimacy of the court.”

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