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Toomey won't say whether he supports rush to replace Ginsburg

Logan Hullinger
York Dispatch

Neither U.S. Sen. Pat Toomey nor his staff would detail his position Monday regarding Senate Republican leaders' plan to fast-track a vote to replace the late Justice Ruth Bader Ginsburg on the U.S. Supreme Court before the presidential election.

The Pennsylvania Republican's silence about replacing one of the court's liberal justices comes amid uncertainty about whether Democrats can muster the support of four GOP senators necessary to block President Donald Trump's nomination of Ginsburg's successor.

Ginsburg died Friday of cancer at age 87.

Toomey's office declined Monday to comment when asked about where he stands on the matter.

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President Donald Trump is expected to announce his nominee by week's end.

So far, two Republicans, Sens. Susan Collins, of Maine, and Lisa Murkowski, of Alaska, have said they oppose Majority Leader Mitch McConnell's vow to quickly install a new justice weeks before the Nov. 3 election.

Republican senators, such Toomey and Utah's Mitt Romney, who are less aligned with Trump than some of their colleagues, could make or break the fortunes of Trump's nominee. 

Meanwhile, numerous Republicans — many of whom argued in 2016 against President Barack Obama's nomination of Merrick Garland, citing that year's presidential election — have now jumped on board McConnell's plan to secure a 6-3 conservative majority on the high court.

In 2016, Toomey, too, opposed Garland's appointment, saying voters should decide which president replaced Justice Antonin Scalia, who died in February of that year.

"First, the balance of the Supreme Court is at stake, and we have an election right around the corner,": Toomey wrote in a 2016 op-ed in PennLive. "With lifetime tenure, the next justice will determine the Court's balance for a generation."

"In that light, I believe it is sensible to allow the American people to participate in the choice of Justice Scalia's successor less than seven months from now."

In 2016, Garland was nominated more than 300 days before the election but the Senate never took up his appointment. Trump instead nominated Justice Neil Gorsuch.

As of Monday, the election was 43 days away.

But now, Senate Republicans say the fact the that GOP controls both the White House and the Senate makes this situation different.

U.S. Senator Pat Toomey (R-Pa.) answers a question during a forum with local economic leaders and business owners regarding the COVID-19 pandemic's impact on the economy Wednesday, August, 26, 2020. The event took place at the York County History Center’s Agricultural & Industrial Museum. Bill Kalina photo

In 2016, Sen. Lindsey Graham, now the chair of the Judiciary Committee, pledged that he would apply the Garland standard if it were to happen again, but this time with a Republican in the White House. 

"I want you to use my words against me," said Graham, R-S.C., ahead of that year's election. "If there's a Republican president 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."

However, on Saturday, Graham pledged to support Trump and his nominee in "any effort to move forward," according to CNN. 

Of note, Sen. Lamar Alexander, R-Tenn., said Sunday that he would back Trump's nominee ahead of the election. Alexander is slated to retire at the end of the year.

Senate Democrats have accused Republicans of hypocrisy, and the party's left flank is demanding retribution should Democrats seize both the upper chamber and the White House. 

Progressives have revived talks of a strategy first proposed by President Franklin D. Roosevelt in 1937 known as court packing.

First floated as an attempt to garner favorable rulings for Roosevelt's New Deal, the Democrat proposed expanding the number of Supreme Court justices to as many as 15.

The revived proposal has yet to gain widespread traction among more moderate Democrats, including presidential nominee Joe Biden.

Sen. Bob Casey, D-Pa., on Monday did not respond to questions about the left's call for payback, instead accusing Republicans of trying to pack the court with conservatives.

Casey, who has warned any nominee would likely dictate the future of the Affordable Care Act, has been an ardent supporter of delaying any confirmation vote until after the election.

"The American people won’t be fooled," Casey said Monday. "They can see that, in the middle of a global pandemic that has claimed the lives of more than 200,000 Americans, President Trump and Senate Republicans are trying to pack the Supreme Court to try to accomplish what they have not been able to do legislatively: destroy the ACA and rip health care away from millions of Americans.” 

— Logan Hullinger can be reached at lhullinger@yorkdispatch.com or via Twitter at @LoganHullYD.