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McConnell: I will fill Ginsburg's seat with Trump's nominee. Schumer says don't dare.

It remains unclear whether Republicans would have the votes to make a new appointment before Nov. 3.
Image: Mitch McConnell speaks at the U.S. Capitol in Washington
Senate Majority Leader Mitch McConnell speaks to reporters on Capitol Hill on Sept. 9, 2020.Kevin Lamarque / Reuters

WASHINGTON — Senate Majority Leader Mitch McConnell, R-Ky., said Friday night that he intends to allow for a floor vote in the Senate to confirm a new nominee made by President Donald Trump to replace the Supreme Court vacancy left by Ruth Bader Ginsburg.

"In the last midterm election before Justice Scalia's death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president's second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president's Supreme Court nominee in a presidential election year," he said.

He continued, "By contrast, Americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump's nominee will receive a vote on the floor of the United States Senate."

McConnell also sent a letter to Republican senators Friday night urging them to “be cautious" about digging in on a position on how to move forward.

"Over the coming days, we are all going to come under tremendous pressure from the press to announce how we will handle the coming nomination, " the letter obtained by NBC News said. "For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry.

"This is not the time to prematurely lock yourselves into a position you may later regret,” McConnell wrote.

Senate Minority Leader Chuck Schumer, D-N.Y., said Friday night that the Senate should not fill the vacancy left by Ginsburg's death "until we have a new president."

"The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president," Schumer tweeted, quoting McConnell, who made the same statement during Barack Obama's presidency after Justice Antonin Scalia died in 2016.

Obama on Friday night urged the Senate to hold off on filling Ginsburg's seat.

"A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment," he wrote in a statement.

If Trump nominates someone to fill her seat, Republicans could attempt to move the nomination through the Senate. The GOP changed the rules under Trump so a Supreme Court justice would only need to be confirmed with 51 votes, rather than a supermajority, which they needed to confirm Justices Neil Gorsuch and Brett Kavanaugh.

There are a number of vulnerable Senate Republicans, however, facing tough re-election races, which could affect how some of them would vote if it occurs prior to the election.

Sen. Lindsey Graham, R-S.C., chairman of the Senate Judiciary Committee, who has one of the toughest re-election fights this November, released a statement that said nothing about a possible confirmation hearing for a new nominee. He only said, "Justice Ginsburg was a trailblazer who possessed tremendous passion for her causes. She served with honor and distinction as a member of the Supreme Court."

In a 2018 interview at the Atlantic Festival, Graham, however, said, "I will tell you this. If an opening comes in the last year of President Trump’s term and the primary process has started, we'll wait to the next election. Hold the date."

People gather at a makeshift memorial for late Supreme Court Justice Ruth Bather Ginsburg on the steps of the Supreme Court on Sept. 18, 2020.Alex Edelman / AFP - Getty Images

Sen. Martha McSally, R-Ariz., who is also vulnerable, tweeted that the Senate should vote on Trump's nominee.

Other Senate Republicans in difficult re-election races such as Cory Gardner of Colorado and Joni Ernst of Iowa did not say anything about whether there should be a confirmation vote and only praised Ginsburg's leadership.

Attorney General William Barr said: "Justice Ginsburg led one of the great lives in the history of American law. She was a brilliant and successful litigator, an admired court of appeals judge, and a profoundly influential Supreme Court Justice."

Several Senate Democrats echoed Schumer's position, arguing the Senate should not confirm a Ginsburg replacement until after the November election.

Sen. Ed Markey, D-Mass., said on Twitter that if McConnell does, in fact, hold a confirmation vote, then if Democrats win control of the Senate in November, they should abolish the filibuster and add seats to the Supreme Court so it would have more than nine justices. They would only do this, however, if former Vice President Joe Biden defeats Trump.

"With voting already underway for the 2020 elections, Ruthie’s 'most fervent wish' was for her replacement not to be named 'until a new president is installed.' We must honor her wish," tweeted Sen. Elizabeth Warren, D-Mass.

Sen. Richard Blumenthal, D-Conn., who served as a law clerk to former Supreme Court Justice Harry A. Blackmun and argued a case in the high court, tweeted, "The American people must have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president. ... This close to the election, there is no way that the United States Senate can or should act before the voters decide."

Sen. Mazie Hirono, D-Hawaii, tweeted, "The best and only way to honor the life’s work of Justice Ginsburg, a giant of a jurist, is to honor her fervent final wish that she not be replaced until a new president is installed."

Reaction to Ginsburg's death from both parties was overwhelming.

"Tonight we mourn, we honor, and we pray for Justice Ruth Bader Ginsburg and her family. Tomorrow we fight for her legacy," Sen. Kamala Harris, Biden's running mate, said in a statement. "For all who believe in the power of the law as a force for change, Justice Ginsburg was and will always be a titan."

Former President George W. Bush said in a statement that the late justice "dedicated many of her 87 remarkable years to the pursuit of justice and equality, and she inspired more than one generation of women and girls" and added that he and his wife, Laura, "are fortunate to have known this smart and humorous trailblazer."

Former President Jimmy Carter said she was a "staunch advocate for gender equality" and noted that he appointed Ginsburg to the U.S. Court of Appeals in 1980.

Hillary Clinton, the 2016 Democratic presidential nominee, tweeted that Ginsburg "paved the way for so many women, including me. There will never be another like her. Thank you RBG."

"Stunned, devastated, and crushed. Thank you, RBG, for a lifetime of service to building a better America. It’s impossible to express how much we will miss you," tweeted Sen. Jeff Merkley, D-Ore.

Republicans also expressed their condolences to Ginsburg and her family.

Sen. Mike Lee, R-Utah, who is on Trump’s list of potential Supreme Court nominees, tweeted, "Justice Ginsburg devoted her entire life to reading, interpreting, and understanding the law. To describe her as a gifted lawyer and jurist who had a profound influence on our country is an understatement. My thoughts and prayers are with her and her family."

House Speaker Nancy Pelosi, D-Calif., said in a statement, "We must honor Justice Ginsburg’s trailblazing career and safeguard her powerful legacy by ensuring that the next Associate Justice of the Supreme Court upholds her commitment to equality, opportunity and justice for all."

Pelosi ordered the flags at the Capitol to be flown at half-staff due to Ginsburg's death, Drew Hammill, one of Pelosi's top aides, tweeted.