Sen. Cory Gardner was blunt in 2016 about why he thought a Supreme Court seat should stay vacant despite then-President Barack Obama’s demand to fill it.
“The next election is too soon, and the stakes too high,” Gardner, a Republican from Colorado, said in March of that year.
Asked on Wednesday about his 2016 comments, amid President Donald Trump’s effort to fill a vacant Supreme Court seat less than two months before an election, Gardner didn’t answer when approached by CNN.
“If you didn’t see my statement, I’ll send it to you,” Gardner, battling to keep his seat for a second term, said as he got on a senators-only elevator.
That statement, however, said nothing about his past position, instead noting that if a qualified nominee he supports comes forward now: “I will vote to confirm.”
As Senate Republicans and the White House race to fill a Supreme Court seat following the death of Ruth Bader Ginsburg, many have struggled to reconcile their support for confirming Trump’s nomination on the eve of an election with their steadfast opposition to even considering the nomination made by a Democratic President eight months prior to Election Day. Party leaders are pointing to the different partisan makeup in Washington, arguing it’s normal to confirm a nominee when the same party controls both the Senate and the White House and not the norm in an election year with divided government like in 2016.
But four years ago, that was not the message pushed by much of the Republican Party as they stressed repeatedly – for months – that it should be the voters who get a say in effectively choosing the next Supreme Court nominee, defending Senate Majority Leader Mitch McConnell’s refusal to move on the vacancy, which was later filled by Trump’s pick of Neil Gorsuch in 2017.
“In the midst of a critical election, the American people deserve to have a say in this important decision that will impact the course of our country for years to come,” Iowa Sen. Joni Ernst said in March 2016. “This is not about any particular nominee; rather this is about giving the American people a voice.”
On Wednesday, Ernst refused to answer a question about whether voters should have a voice now over the Ginsburg seat, walking in silence as a reporter asked her three times about her 2016 statement as she was departing the Capitol.
Others like Ernst who are also in difficult reelection races are reluctant to engage when asked to reconcile their past position with their support for Trump’s move now.
“I got people waiting for me,” said Georgia Sen. David Perdue, not responding to questions for the third time this week about his 2016 statement that not holding hearings on Obama nominee Merrick Garland “is a wise course of action in the midst of a presidential election.”
The reason for the refusal to engage is clear: Republicans believe that they need to act on a once-in-a-generation opportunity to fundamentally shift the balance of the court – no matter what they said in the past – and they are confident that the Supreme Court fight will energize their voters in the midst of a closely contested election for control of the Senate where the GOP holds a 53-47 majority.
Indeed, while a new CNN poll shows a clear majority of 59% of voters nationally say the winner of the presidential race should choose the next nominee, 83% of Republican voters believe that Trump should select the next Supreme Court justice before the election. And in Republican-leaning states where GOP senators are clinging to their seats, they are betting that a Supreme Court fight now will rally their base and remind conservative-leaning voters why they want a GOP Senate majority – irrespective of their past positions.
Montana Sen. Steve Daines, a Republican from a state that Trump won by more than 20 points in 2016, is locked in a tight race with Democratic Gov. Steve Bullock – and is making clear he’s fully behind Trump’s nominee, who is scheduled to be named Saturday evening.
But in 2016, Daines said: “The American people have already begun voting on who the next President will be and their voice should continue to be reflected in a process that will have lasting implications on our nation.”
Asked about that past statement on Wednesday, Daines said that the President has “a responsibility under the Constitution to nominate a justice – the Senate can either confirm or reject the nominee.” Daines said in 2016 Republicans rejected a “liberal justice” and now when Trump makes his pick, “I will stand in support of that conservative.”
“There’s a very clear difference right now in terms of what kind of justice should be on the Supreme Court,” Daines said. “I support conservatives, my opponent supports liberals.”
When asked why the voters shouldn’t have a say, Daines responded: “They had a choice: They elected President Trump and a Republican Senate.”
Sen. Thom Tillis, in a neck-and-neck race with Democrat Cal Cunningham in North Carolina, said Trump is “not a lame-duck” president like Obama was.
But in 2016 comment, Tillis said: “This is about the principle, not the person,” and that the American people should have a “voice” to determine the direction of the court. Asked about statement, Tillis said Wednesday: “We knew that President Obama was on his way out the door. We were months away from an election. But at the end of the day, we support moving forward with the process” now.
Democrats argued for confirmation vote in election year four years ago
It’s not just Republicans forced to reconcile their past positions. Democrats, too, spent months in 2016 demanding the seat be filled, warning about the dangers of having just eight seats on the Supreme Court.
“Every day that goes by without a ninth justice is another day the American people’s business is not getting done,” Senate Democratic Leader Chuck Schumer said four years ago.
Minnesota Sen. Amy Klobuchar, a Democratic member of the Senate Judiciary Committee, who four years ago made urgent appeals for an up-or-down vote on Obama’s nominee, said the two circumstances are totally different.
“You cannot have one seat of rules for a Democratic President and another set of rules for Republicans,” she said.
Sen. Richard Blumenthal of Connecticut, another member of the committee, also repeatedly lambasted Republicans for refusing to hold a confirmation vote in the 2016 election year.
Asked to reconcile the two positions, Blumenthal said: “We argued nine months before the election a seat should be filled rather than waiting, in effect, a full year. The (confirmation) vote will occur within days, less than a week probably of the election. Literally, people are going to the ballot. They are voting right now in seven states. The circumstances are just totally different.”
Democrats argue that never in history has a Supreme Court justice been confirmed after July in an election year, a point that Schumer made on the Senate floor Wednesday.
In an exchange with the presiding officer – GOP Sen. Kelly Loeffler, herself in a tough fight to keep her Georgia seat – Schumer asked if there was precedent for confirming a nominee between July and November in a presidential election year.
“Materials from the secretary of the Senate do not show such precedent,” Loeffler said.
Republicans argue that the fine points over which parties are controlling the White House and Senate at the time of an election year vacancy are critical and validate their actions to block Garland in 2016 and move forward with a nominee now. They say that only 15 times in history has a Supreme Court vacancy occurred in an election year and the President has nominated a candidate. Of those 15, seven occurred when the Senate was controlled by the opposite party. Only two of those nominees were confirmed, the last in 1888.
And for the eight times that the White House and Senate were of the same party, nominees were confirmed seven times. The lone person who was not confirmed, Abe Fortas for chief justice in the late 1960s, faced corruption charges and his nomination was withdrawn.
“Apart from that one strange exception, no Senate has failed to confirm a nominee in the circumstances that face us now,” McConnell said Monday. “The historical precedent is overwhelming and it runs in one direction. If our Democratic colleagues want to claim they are outraged, they can only be outraged at the plain facts of American history.”
GOP’s 2016 message
But even as McConnell has pointed out in 2016 that he raised how one-party rule is different than divided government, even the GOP leader himself was emphasizing four years ago how it was up to the voters to decide the direction of the court that November.
“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country,” McConnell said on the floor in March 2016. “So, of course, of course, the American people should have a say in the court’s direction.”
Sen. Marco Rubio, who ran for President in 2016, told reporters in the Capitol shortly after he dropped out that year, that he opposed Garland and added: “I don’t think we should be moving forward on a nominee in the last year of this President’s term. I would say that if it was a Republican president.”
Asked about that past statement, Rubio told CNN this week: “Here’s the bottom line: if the President nominates someone as he is allowed to do, and they put someone up that I support, I’m not going to vote against the judges I support. It’s as simple as that.”
“No, I am not,” Rubio said when asked if he was contradicting his past position. The senator pointed to remarks he made that year on NBC’s “Meet the Press” where he said a president should not nominate someone in their last year “especially in their second term,” though he didn’t mention the second term in his interaction with reporters in the Capitol.
Some Republicans have different reasons for reversing their stances, including Senate Judiciary Chairman Lindsey Graham, who vowed in 2016 and 2018 not to move ahead with a nominee in 2020. But Graham, locked in a tough reelection battle in South Carolina, said that his views changed in the aftermath of the vicious Supreme Court fight that led to the confirmation of Brett Kavanaugh in 2018.
Sen. John Cornyn, a member of the Senate Judiciary Committee and facing reelection in Texas, said in 2016 that it was “an important principle” to give voters a say in driving the direction of the court.
“This is really about an important principle,” Cornyn said in March 2016. “It’s important to allow the voters, in choosing the next President of the United States, make that decision and make sure their voice is heard rather than just 100 members of the Senate.”
But asked this week about that position, Cornyn said he took that view “because President Obama was term limited out.”
Some more recently have voiced paused about filling a vacancy.
The chairman of the committee at the time, Iowa Sen. Chuck Grassley, told CNN in late July of this year that he didn’t think the Senate should move on any vacancy that could occur. “My position is if I were chairman of the committee, I couldn’t move forward with it.”
But earlier this week, days after the death of Ginsburg, Grassley sided with his party’s decision to press ahead with a nominee now.
Asked what changed between now and July, Grassley told CNN on Wednesday that he’s not the chairman of the committee and said he was being consistent.
“If Graham goes ahead with a hearing, he can expect me to be there, and I have a responsibility to be there.”
Asked about voting no based on principle, given his past concerns about pressing ahead this year, Grassley said: “I’m going to vote on the qualifications of the nominee.”
CNN’s Daniella Mora and Dominic Torres contributed.