Justice Ruth Bader Ginsburg’s recent health problems have revealed a rift among Senate Republicans over what to do if a Supreme Court seat becomes vacant before the end of President Trump’s first term.

While Senate majority leader Mitch McConnell (R., Ky.) has indicated his intent to fill any Supreme Court vacancies in 2020, other Republicans are more hesitant.

Senator Lisa Murkowski (R., Alaska), expressed concern that confirming a Trump nominee before the end of the president’s term would create a “double standard” after Republicans in 2016 declined to appoint then-president Obama’s nominee, Merrick Garland, to fill the seat vacated by conservative justice Antonin Scalia’s death.

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“When Republicans held off Merrick Garland it was because nine months prior to the election was too close, we needed to let people decide. And I agreed to do that. If we now say that months prior to the election is OK when nine months was not, that is a double standard and I don’t believe we should do it,” Murkowski told The Hill. “So I would not support it.”

Republicans, who control 53 Senate seats, wouldn’t be able to confirm a justice with more than three defections of a confirmation vote if all 47 Democratic senators stay unified.

When Scalia died in mid-February of 2016 and Obama nominated Garland one month later, McConnell and then-Senate Judiciary Committee chairman Chuck Grassley (R., Iowa) blocked Garland from even getting a hearing.

McConnell has said confirming another Trump nominee would be different because Republicans control both the White House and the Senate, while in 2016 Democrats controlled only the White House. 

For his part, Grassley, who now serves as the chairman of the Senate Finance Committee, said he would likely maintain Republicans’ 2016 position if the situation arises, though he stressed that the decision is ultimately up to Senate Judiciary Committee chairman Lindsey Graham (R., S.C.).

Graham told The Hill that while he’d be willing to fill a vacancy, his decision would depend upon what his Republican colleagues think.

Senate Republican whip John Thune (S.D.) said he would support filling a vacancy before the election but was less certain about a course of action should Trump lose the election. Senator Josh Hawley (R., Mo.) expressed support for confirming a Trump nominee in 2020.

Graham expects Trump to release a list of conservative nominees in the coming weeks, which he would pick from should a Court vacancy occur this year or in Trump’s second term, if he wins reelection. 

“I don’t know. We’ll see,” he said. “I hope everybody stays healthy on the Supreme Court and we don’t have to worry about it.”

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