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The flag flies at half-staff at the Supreme Court on the morning after the death of Justice Ruth Bader Ginsburg, 87, on Sept. 19, 2020. (AP) The flag flies at half-staff at the Supreme Court on the morning after the death of Justice Ruth Bader Ginsburg, 87, on Sept. 19, 2020. (AP)

The flag flies at half-staff at the Supreme Court on the morning after the death of Justice Ruth Bader Ginsburg, 87, on Sept. 19, 2020. (AP)

Louis Jacobson
By Louis Jacobson September 20, 2020

Facebook post wrong that four GOP senators are already blocking SCOTUS nomination

If Your Time is short

  • Two of the senators cited, Lisa Murkowski and Susan Collins, have stated their position since Ginsburg’s death. They both said they opposed a vote before the election, but they did not explicitly rule out a vote after the election during the lame-duck period before a new Congress is sworn in. 
  • The other two senators, Romney and Grassley, have not commented about how to proceed with the current vacancy.

Tensions are high with control of the Supreme Court hanging in the balance, and a Facebook post is offering misleading information about how a Republican nominee to succeed the late Justice Ruth Bader Ginsburg might be considered in the Senate.

The post was dated Sept. 18, the same day as Ginsburg’s death. It says, "4 republican senators now on board...no vote until January on (Supreme Court): Murkowski, Romney, Collins, Grassley."

The post is referring to four Republican senators, Lisa Murkowski of Alaska, Mitt Romney of Utah, Susan Collins of Maine, and Charles Grassley of Iowa. Under the Senate’s current rules, the Democrats would need to win over four Republican senators to block action on a nominee from President Trump.

While these four senators have in the past stated their unease with filling a hypothetical vacancy this late in an election cycle, their past declarations don’t necessarily carry any weight for the decision over the actual Supreme Court vacancy they are now confronted with.

The Senate, currently under Republican control, would be able to proceed to consideration of Trump’s nominee with simple majority support. Until 2017, the Senate required 60 votes to proceed to a Supreme Court nomination, but that year the Republicans voted to reduce the number to a simple majority. The lower threshold was used for the first time with the nomination of Neil Gorsuch and was then used again for Brett Kavanaugh.

The current partisan breakdown in the Senate is 53 Republicans and 47 Democrats or Democratic-aliged independents. This means that the Democrats could only block the nomination if they can convince four Republicans to oppose it. (Three Republicans wouldn’t be enough, because Vice President Mike Pence, as president of the Senate, would be able to cast a tie-breaking vote for Trump’s nominee.)

The Facebook post makes it sound like the four Republicans have already committed to doing so. But their past comments on the topic have addressed a theoretical court vacancy this late in the process, not the actual vacancy we have now. And their past comments are not binding; they could switch their view at any time and vote accordingly.

Two of the four senators named in the Facebook post have reiterated their opposition to taking up the expected Trump nomination, but they’ve phrased their words carefully.

On Sept. 19, one day after the Facebook post was published, Collins said in a statement, "Given the proximity of the presidential election ... I do not believe that the Senate should vote on the nominee prior to the election."

On Sept. 20, two days after the post was published, Murkowski said, "For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election. Sadly, what was then a hypothetical is now our reality, but my position has not changed." 

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However, even these statements do not back up the Facebook post, since they did not explicitly rule out the option of voting on Trump’s nomination after the election, during the lame duck period before the next Congress is sworn in. That would be allowable under the Senate’s rules, though it would be highly controversial if the Democrats have already won back the presidency and enough seats to control the Senate.

As of the afternoon of Sept. 20, neither Romney nor Grassley had taken an official position on consideration of a Trump nominee. 

In 2016, Grassley, a former chairman of the Judiciary Committee, said, "A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn’t be denied a voice."

He reiterated this in October 2018, saying the committee, then under his chairmanship, wouldn’t consider a Supreme Court nominee in 2020. "If I’m chairman they won’t take it up," he told Fox News.

The current chairman is Sen. Lindsey Graham, R-S.C., who has said he’ll take up Trump’s nomination in committee. (This is a reversal from a position Graham stated as recently as 2018.)

Romney, who was the lone Republican to break from his party on the Trump impeachment vote, has not formally commented on how to fill the Ginsburg vacancy.

Our ruling

The Facebook post says, "4 republican senators now on board...no vote until January on (Supreme Court): Murkowski, Romney, Collins, Grassley."

Prior to Ginsburg’s death, three of the four named senators had expressed concerns about a theoretical appointment being filled close to an election. 

Two of the senators, Murkowski and Collins, have stated their position since Ginsburg’s death. They both said they opposed a vote before the election, but they did not explicitly rule out a vote after the election during the lame-duck period before a new Congress is sworn in. The other two senators, Romney and Grassley, have not commented about how to proceed with the current vacancy.

We rate the statement False.

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Facebook post wrong that four GOP senators are already blocking SCOTUS nomination

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