Two Republican senators tapped by Donald Trump as possible supreme court nominees offered varying justifications for their party’s speedy attempts to confirm Ruth Bader Ginsburg’s successor on Sunday, with one claiming Democrats “are already rioting in the streets”.
The extraordinary allegation came from the Arkansas senator Tom Cotton, a staunch Trump ally, on Fox News Sunday, when asked if he believed Republicans had enough votes in the Senate to force through the president’s soon-to-be-named pick before the 3 November general election.
“The Democrats are saying radical things right now,” Cotton said. “Democrats are threatening to riot in the streets, Democrats are already rioting in the streets, though. They’re threatening to pack the court, they were already threatening to pack the court.”
Cotton, named 10 days ago with fellow senators Ted Cruz of Texas and Josh Hawley of Missouri among Trump’s pool of supreme court candidates, offered no context or further explanation for the claim. But his assessment contrasted sharply with scenes in Washington on Saturday night, when thousands attended a peaceful candlelight vigil to celebrate the life of Ginsburg, a pioneering jurist who died on Friday aged 87.
Cotton has a history of controversial statements, previously likening Black Lives Matter protestors to the Confederacy and stating that slavery was “a necessary evil”. He has also called for Trump to use troops against protests over police brutality and structural racism.
The overwhelming majority of such protests since the killing of George Floyd in Minneapolis in May have been peaceful. Some have become violent, producing confrontations between protesters and police, the national guard and sometimes federal officers sent by the Trump administration.
Cotton also had a warning for politicians opposed to a Senate floor vote for Ginsburg’s replacement, which will come before the end of the year according to majority leader Mitch McConnell.
“Democratic senators can look at what happened in 2018 when four of their colleagues lost their re-election a month after voting against Justice [Brett] Kavanaugh, and the one who did got re-elected,” he said.
Cotton, however, was overplaying the strength of the so-called “Kavanaugh’s revenge” in the 2018 midterm elections. A New York Times analysis suggested three of the Democrats were likely to have lost anyway in conservative states, and noted that five other Democrats in states won by Trump in 2016 were re-elected after voting against Kavanaugh.
Cotton, whose own interest in the supreme court vacancy was effectively ended by Trump’s pronouncement that he will pick a woman, said the Senate would “move forward without delay” when the president’s choice was made.
Cruz delved deep into the history books and threw in a plug for his own forthcoming book on the supreme court, as he defended the Republican party from allegations of hypocrisy.
In election year 2016, after Barack Obama nominated Merrick Garland to the supreme court following the death of Antonin Scalia, the Republican Senate majority stalled for 10 months, until Trump was elected and seated Neil Gorsuch as his own choice. Trump’s nominee this year is promised a vote despite a general election being 44 days away.
“If you look at history, if you actually look at what the precedent is, this has happened 29 times,” the Texas senator said on ABC’s This Week, referring to election-year vacancies on the supreme court.
“There’s a big difference with whether the Senate is of the same party of the president or a different party. When the Senate has been of the same party of the president, of the 29 times, those are 19 of them. Of those 19, the Senate has confirmed those nominees 17 times. So if the parties are the same, the Senate confirms the nominee.
“When the parties are different, that’s happened 10 times. Merrick Garland was one of them. Of those 10, the Senate has confirmed the nominees only twice.”
Cruz’s “precedent” argument sits uneasily with Democratic critics, who point to the contrast of Republicans denying Garland even a hearing while pushing Trump’s 2020 nominee at full speed.
But Cruz, who made sure to reference next month’s publication of his book One Vote Away: How a Single Supreme Court Seat Can Change History twice, insisted there was nothing partisan about it.
“It’s not just simply your party, my party,” he said. “It’s a question of checks and balances. In order for a supreme court nomination to go forward, you have to have the president and the Senate.”
In fact, the Senate and the White House do not have to be held by the same party for a nominee to be confirmed.
Anthony Kennedy, whose retirement paved the way for Kavanaugh, was nominated by Ronald Reagan, a Republican, and confirmed by a Democratic Senate. David Souter, who retired in 2009, was nominated by the Republican George HW Bush and confirmed by a Democratic Senate.
The first president Bush also nominated Clarence Thomas, a current member of the court, who was confirmed by a Democratic Senate.
No nominee from a Democratic president has been confirmed by a Republican Senate, however, since 1895.
“In this instance,” Cruz insisted, “the American people voted. They elected Donald Trump.”
Trump won the presidency in 2016 in the electoral college, having lost the popular vote to Hillary Clinton by nearly 3 million ballots.
Cruz also made the case that a ninth judge needed to be seated in case the November election resulted in a contentious legal battle, similar to Bush v Gore in 2000 that ended with the supreme court installing the Republican.
“We need a full court on election day, given the very high likelihood that we’re going to see litigation that goes to the court,” said Cruz, who was part of the Republican legal team in Florida in 2000.
“We need a supreme court that can give a definitive answer for the country.”