Sen. Mitch McConnell, R-Ky., has drawn criticism from Democrats and dissent from a few in his own party for vowing a vote this year for President Donald Trump's pick, after having refused to consider President Barack Obama's selection to succeed Justice Antonin Scalia in 2016. Justice Scalia died in February of that year; Justice Ginsburg died six weeks before Election Day.
Trump told Fox News the difference boils down to control of the upper chamber.
"The only problem was, President Obama did not have the Senate," Trump said Monday. "When you have the Senate, when you have the votes, you can sort of do what you want."
McConnell argued on the Senate floor that he has taken a consistent approach: The Senate majority may refuse to consider a nominee from a president of the opposite party during a presidential election year.
He pointed to a line from his speech three days after Justice Scalia's death: "The Senate has not filled a vacancy arising in an election year when there was divided government since 1888."
The majority leader said he was following a clear historical precedent in refusing to consider a nominee from the opposite party in 2016 and moving ahead with a nominee from his own party in 2020. He called a failed nomination "the historically normal outcome in divided government," with only two of seven instances resulting in confirmation, the most recent under President Grover Cleveland in 1888.
In contrast, McConnell said, "When voters have not chosen divided government, when the American people have elected a Senate majority to work closely with the sitting president, the historical record is even more overwhelming — in favor of confirmation."
The precedent debate draws from a small data set. This year is only the 16th time in history that a U.S. Supreme Court vacancy has occurred the same year as a presidential election. Over a half-century elapsed between the most recent instances in 1968 and 2016; another meteor struck just four years later.
The chamber's top Democrat, Minority Leader Chuck Schumer of New York, rejected McConnell's appeal to precedent as "sophistry."
"The Senate has never confirmed a nominee to the Supreme Court this close to a presidential election," he said.
Schumer cited statements in 2016 from Republican leaders, such as now-Judiciary Committee Chairman Lindsey Graham of South Carolina telling Democrats that "if there's a Republican president [elected] in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, 'let's let the next president, whoever it might be, make that nomination.'"
"Now those words don't apply?" Schumer asked. "It doesn't pass the smell test in any way. Surely they must abide by their own standard."
Graham said in a letter Monday to the committee's Democrats that "after the treatment of Justice [Brett] Kavanaugh I now have a different view of the judicial-confirmation process. … I am certain if the shoe were on the other foot, you would do the same."
On Monday night, the chairman predicted a new justice by Election Day.
"We've got the votes to confirm the judge — the justice — on the floor of the Senate before the election, and that's what's coming," Graham told Fox News.
Also on Monday, Senate Democrats united in calling for confirmation to wait until after the presidential election.
The most vulnerable Democrat on the ballot this fall, Sen. Doug Jones of Alabama, said the winner of the 2020 presidential election should replace Justice Ginsburg.
Sen. Joe Manchin of West Virginia, the lone Democrat who voted to confirm Justice Brett Kavanaugh, said a pre-election confirmation would be "hypocrisy in its highest form" and called it "simply irresponsible to rush the adequate and proper vetting required of any new candidate for the bench."
While McConnell vowed again Monday that "this Senate will vote on this nomination this year," he has not endorsed a timeline. Trump told reporters Saturday that he preferred a pre-election confirmation: "I would think before would be very good, but we'll be making a decision."
The confirmation process hinges on a few GOP senators who might oppose a vote before Nov. 3. Without any Democratic support, McConnell can lose only three of the chamber's 53 Republicans.
Sens. Lisa Murkowski of Alaska and Susan Collins of Maine have said a vote should wait. Sen. Mitt Romney of Utah has yet to state a position.
"Before I have any comment, I'm going to meet with my colleagues, which I'll be doing tomorrow," Romney told reporters Monday.
In addition to Collins, another half-dozen Republican senators face tight re-election campaigns this year. All of them have endorsed a confirmation this year. The last one to do so, Sen. Cory Gardner of Colorado, said late Monday that "should a qualified nominee ... be put forward, I will vote to confirm."
The chamber's second-ranking Republican, Majority Whip John Thune of South Dakota, told reporters Monday that "most Republican senators would be strongly in favor of moving on this because that's why a lot of them got elected." He suggested the party might reach a consensus on timing during its regular conference lunch Tuesday.
"We haven't heard from everybody," he said. "Until we get an opportunity [to get] everybody together, I think it's probably a little early to speculate."
Conservative advocacy groups are lining up to pressure vulnerable GOP senators. On Monday, the Judicial Crisis Network announced a $2.2 million ad campaign in four states with vulnerable Republicans on the ballot, as well as Romney's reliably red state of Utah.
Also on Monday, House Speaker Nancy Pelosi, D-Calif., said that Justice Ginsburg will lie in state Friday at the Capitol's Statuary Hall — the first time the honor has been afforded a woman or a Jewish person, according to the Jewish Telegraphic Agency news service. In 2005, civil rights icon Rosa Parks lay "in honor"; only government officials and military officers technically "lie in state."
The late justice's casket will lie in repose at the top of the Supreme Court steps on Wednesday and Thursday before heading to the Capitol. Her family has planned a private burial next week at Arlington National Cemetery.
--Editing by Kat Laskowski.
Update: This article has been updated with additional comments from Trump and Graham.
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