The nine justices are to hear three cases testing the president’s right to keep his taxes and financial records secret – the implications are far-reachingOn Tuesday morning the supreme court will assemble via conference call to hear oral arguments in three cases involving President Donald Trump’s claimed right to keep his taxes and financial records secret. These are in fact this generation’s most important tests of the nature and limits of presidential prerogative.One case arises out of the efforts of the Manhattan district attorney, Cyrus Vance, to obtain tax records and other financial information from the Trump Organization as part of a grand jury investigation. More particularly, it raises the question of whether the president can refuse to comply with Vance’s subpoena in order to shield those records.The other two involve the question of whether a congressional committee has the legal power to subpoena Trump’s accountant and some of his lenders.President Trump’s term in office has been marked by repeated refusals to comply with subpoenas, whether from law enforcement officials or from congressional oversight committees. He also used this strategy of defiance to frustrate Congress’s impeachment investigation.His insistence that he does not have to follow the rule of law is perfectly in keeping with his assertion during the last Republican national convention, that “I alone” can fix America’s problems and with his outrageous belief, as he said later in the campaign, that “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.”Trump has taken this inflated view of his importance into the Oval Office, recently claiming that he had total authority to supersede governors in dealing with the current pandemic and that the constitution’s article II, which defines the executive branch’s powers, means that he can “do whatever” he wants.The president is supported by an attorney general who believes in the so-called “unitary executive” theory: the fate of the country, on this theory, depends on virtually unchecked presidential power.On Tuesday, in the New York case, the president’s lawyer, Jay Sekulow who also represented Trump during the Senate impeachment trial, will make the breathtaking argument that the supreme court should recognize what he calls “temporary absolute immunity”. That he will be joined in this argument by Noel J Francisco, solicitor general of the United States, is further indication of the complicity of the attorney general, William Barr, in this effort to create an environment in which this president can behave with impunity.In their view, article II and the supremacy clause, mean not only that the president cannot be indicted or put on trial for committing a crime, but also that he cannot be subject to any criminal investigation during his term in office.In the other two cases, the president’s lawyers will contend that the constitution limits Congress’s authority to investigate the president.And, as if these theories of presidential immunity were not extreme enough, Trump’s lawyers will try to persuade the court that the constitution immunizes not only the president himself but also the businesses that he owned before becoming president as well as people they hire to handle their financial affairs.The president’s lawyers made these same claims before the federal district court for the southern district of New York and second circuit court of appeals, neither of which were persuaded of the wisdom and legality of these positions. Courts in the District of Columba also ruled against the president in his dispute with Congress.All of those courts were unpersuaded because the applicable legal precedents do not line up in Trump’s favor. Two cases seem particularly relevant.In 1974, a unanimous supreme court ruled that “executive privilege” (the right to withhold information from other branches of the government to protect confidential communications within the executive branch) could not be invoked to permit presidential non-compliance with a grand jury subpoena. President Richard Nixon, from whom Trump recently said that he had learned a lot, had to surrender documents and tapes pertaining to the possible criminal conduct of members of his staff during the Watergate affair.Chief Justice Warren Burger, whom Nixon appointed to the court, spoke for all the justices when he said that “the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the court.”> The court has experienced both a deepening of partisanship and an emboldening of its conservative majorityTwenty-three years later, in 1997, the supreme court returned to the question of the scope of presidential immunity. In Clinton v Jones it again decided unanimously that a president, this time Bill Clinton, could be forced to testify in a civil case during his term in office.Because of the strengths of these precedents, some commentators confidently predict that the court will rule against President Trump.But a lot has happened in the supreme court since the United States v Nixon and Clinton v Jones decisions. The court has experienced both a deepening of partisanship and an emboldening of its conservative majority. Moreover, in several areas, the John Roberts court has been eager to defer to presidential power.In the face of these developments, the chief justice has tried to convince observers of his investment in and concern about the court’s institutional legitimacy. Thus he memorably spoke out when President Trump impugned the integrity of a ninth circuit court of appeals judge calling him an “Obama judge”.Roberts responded by insisting that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges … [only] dedicated judges doing their level best to do equal right to those appearing before them.”The outcome of the cases argued on Tuesday hinges on the chief justice’s willingness to make good on those words when the stakes for the future of America’s constitutional design are high. It will also depend on his skill in marshaling the court to join him.The stakes in the cases are heightened by the failed effort to impeach the president and remove him from office. Having survived that effort to hold him accountable for obstruction of Congress and abuse of power, Trump is all the more emboldened in 2020. If he were to prevail in the current cases, little would be left of America’s vaunted system of checks and balances. The country would inch closer to the fulfillment of Trump’s authoritarian designs.The president has worked hard to appoint to the supreme court justices and to other federal courts Trump-friendly judges, believing that they would provide legal cover for his often corrupt arrogation and abuse of power. Tuesday will provide an important glimpse into the justices’ thinking and a chance to see whether they will muster the wisdom, courage and commitment to prove him wrong, and to defend the rule of law.

The Supreme Court is about to hear cases about whether Congress and Manhattan’s district attorney can subpoena Donald Trump’s tax returns and other financial records. Trump has lost his challenges to the subpoenas repeatedly in the lower courts, and for good reason: his arguments against them are exceedingly weak.  But Trump, a profoundly transactional man who is desperate to keep his tax returns from seeing the light of day before the election, plainly expects the high court’s protection as a reward for packing the federal bench, including the Supreme Court itself, with young right-wing extremists. If Justice John Roberts and the court’s other right-wing jurists twist the law to do Trump this favor, they will deal a heavy blow to the court’s already compromised legitimacy, and potentially to their own power as well.This Decision Could Be Bigger Than ImpeachmentIf Trump loses in November, court packing might be his most enduring legacy (apart from mass death). Trump failed to pass any historic legislation during his first two years in office, while his party controlled both houses of Congress. Indeed, his only significant congressional achievement was signing a tax bill that so ostentatiously favored the very wealthy that it helped Democrats retake the House. But Trump, together with Senate Majority Leader Mitch McConnell, has succeeded in remaking the federal judiciary, from the Supreme Court on down, by installing a huge number of extraordinarily ideological right-wingers, selected with the integral involvement of the Federalist Society. This has included filling slots McConnell held open during the Obama administration (not the least of them being the Supreme Court seat that opened up with the death of Antonin Scalia).McConnell reportedly views the court-packing scheme as his chief legacy, and for good reason. While conservatives publicly deride so-called “activist judges,” the Republican Party has relied since the Reagan years on “its” judges to void popular governmental policies, and, most importantly, to oppose democracy itself by selectively impairing voting rights. Of course, the Supreme Court overtly determined the outcome of one presidential election, in Bush v. Gore; but nearly as consequentially, the Roberts court voided the primary enforcement provisions of the Voting Rights Act in 2015, and in 2019, gave the green light to gerrymandering schemes the GOP has employed to entrench its control of numerous state legislatures, and until last year, the House of Representatives.  Last month, at the behest of the Wisconsin GOP, the Supreme Court forced many voters to choose between being disenfranchised and risking death by voting in person when it voided an order extending the time for the acceptance of absentee ballots, many of which were sent out late. It was all part of a gambit to save the seat of a right-wing judge on Wisconsin’s highest court. Angry Democratic voters showed up at polling places in droves and defeated the GOP incumbent, though some were needlessly infected in the process.The Supreme Court, and other federal courts dominated by GOP nominees, have also been bulwarks against popular governmental policies disfavored by Republicans and their allies, including by voiding gun safety laws and environmental regulations. During the last several years, as Trump has failed to enact his policies through legislation, the Supreme Court has stepped into the breach by affording the president wide latitude to unilaterally effectuate his radical agenda items unilaterally.Most notoriously, the court upheld Trump’s “Muslim ban,” expressly refusing to take into account Trump’s many admissions of his discriminatory purpose, starting with his announcement during the campaign that he would impose a “total and complete shutdown of Muslims entering the United States.” The court has also repeatedly nullified emergency injunctions issued by lower courts against overreaching presidential actions even before ruling on the merits of challenges to Trump’s policies. For example, the court green-lighted Trump’s defiance of Congress’ refusal to fund his border wall by raiding funds appropriated for other purposes, and permitted Trump to implement rules allowing the government to label immigrants “public charges,” and deny them green cards, simply for accessing aid such as health care and other assistance during periods of extremis.McConnell and his GOP allies plainly have their sights set beyond Trump’s time in office, and expect that the huge cadre of extraordinarily ideological young judges they are installing to lifetime seats on the federal bench will continue to serve their interests, even if the GOP loses its grip on the government in the near future.Given that long view, it is unsurprising that McConnell insisted on bringing a Senate chock-full of vulnerable elderly legislators into session in the midst of a raging pandemic to confirm a 37-year-old former McConnell intern, Justin Walker —who recently wrote that the mayor of Louisville had criminalized Easter by applying a stay-at-home order to a “drive in” church service — to the powerful D.C. Circuit Court of Appeals.But Donald Trump is not one to care much about the future, let alone a future that might not include him. With the political walls closing in on him, Trump’s likely expectation is that “Trump justices,” and other right-leaning jurists, will do his bidding and protect him, the law be damned, is finally coming into open conflict with his party’s goal of maintaining a lasting judicial wall against Democratic policies. Trump is the only president since Lyndon Johnson whose tax returns have not been disclosed to the public, let alone Congress. He is plainly determined to ensure that it stays that way for as long as possible, and certainly until after the next election.SCOTUS Must Decide if Courts Will Condone Trump’s IllegalityBut the cost to the court of doing Trump’s bidding could be extremely high.In this regard, one of the few high-profile cases in which the Supreme Court ruled against Trump is notable. Last year, the court effectively prevented the administration’s attempt to add a citizenship question to the census because evidence established the government’s claimed purpose—to further the enforcement of the Voting Rights Act—was fraudulent (or in Roberts’ more diplomatic words, “contrived”).  The chief justice was unwilling to openly and notoriously further what amounted to misleading conduct by Trump’s cronies, likely recognizing the risk to the court’s legitimacy could be high.The cost of enlisting the court in Trump’s legally meritless effort to hide his personal financial records from Congress and law enforcement investigators could be much higher.As Trump’s most recent Supreme Court appointee, Brett Kavanaugh, observed, the “greatest moments in American judicial history” have been when courts “stood up to the other branches, were not cowed, and enforced the law”—including when the Supreme Court ordered Nixon to turn over the inculpatory tapes that drove him from office. If the Supreme Court is cowed when it faces the current test, it will be the tribunal’s most ignominious moment in decades, and will not soon be forgotten.This will be particularly true if, as seems increasingly likely, Joe Biden enters the White House next January. It is unlikely that a President Biden would readily accept a Supreme Court setting out to void his policies after the court had bent over backward to protect those of his predecessor. Furthermore, if as seems increasingly possible, Biden takes office with a Democratic majority in the Senate, the Court-packing scheme that Trump and McConnell have counted on as their legacy could be placed in immediate danger.The size of the Supreme Court, and indeed of the entire federal judiciary, is determined by statute, not by the Constitution. Hence, it is within the power of Congress to increase the size of any court, including the Supreme Court, and likewise within the power of the president and the Senate to confirm any nominee. The only thing that would stand in the way of a Democratic Congress and president undoing the GOP’s remaking of the courts, including by adding to the members of the Supreme Court, would be political will. FDR was unable to force Congress to take that step, and Biden has ruled it out himself to date. But in the wake of a Supreme Court decision to protect a desperate President Trump from embarrassment, and potential criminal liability, on the eve of an election, such will might be amply available.Therefore, even if Roberts and every other member of the Supreme Court’s current five-justice conservative majority lack compunctions about sacrificing legal principles to protect Donald Trump, one or more of them may well recognize that doing so could come at a heavy cost to their own power.Read more at The Daily Beast.Get our top stories in your inbox every day. Sign up now!Daily Beast Membership: Beast Inside goes deeper on the stories that matter to you. Learn more.

Freshman lawmakers arriving on Capitol Hill after the 2018 midterms got a wild ride as soon as they grasped the reins of political power.

They were sworn-in amid the longest government shutdown in U.S. history. They then hurtled into the deeply divisive impeachment of President Trump.

Before the term was ...

* Retweet storm after justice department drops Flynn case * Obama: US ‘rule of law’ is at risk under Trump * Opinion: Under Trump, American exceptionalism means misery * For God and Country: Christian case for Trump is a thin readDonald Trump continued to fume over the Russia investigation on Sunday, more than a year after special counsel Robert Mueller filed his report without recommending charges against the president but only three days after the justice department said it would drop its case against Michael Flynn, Trump’s first national security adviser.“The biggest political crime in American history, by far!” the president wrote in a tweet accompanying a conservative talk show host’s claim that Barack Obama “used his last weeks in office to target incoming officials and sabotage the new administration”.The tweet echoed previous messages retweeted by Trump, which earned rebukes for relaying conspiracy theories. On Sunday afternoon the president continued to send out a stream of tweets of memes and rightwing talking heads claiming an anti-Trump conspiracy. One tweet by Trump simply read: “OBAMAGATE!”Trump fired Flynn, a retired general, in early 2017, for lying to Vice-President Mike Pence about conversations with the Russian ambassador regarding sanctions levied by the Obama administration in retaliation for interference in the 2016 election.The US intelligence community has long held that such efforts were meant to tip the election towards Trump and away from Hillary Clinton, the Democratic nominee.Flynn pleaded guilty to lying to the FBI – which Trump has acknowledged – and co-operated with Mueller, who was appointed to take over the investigation of Russian interference after Trump fired FBI director James Comey.Mueller did not establish a criminal conspiracy but did lay out extensive links between Trump and Moscow and instances of possible obstruction of justice by the president.Flynn sought to change his plea while awaiting sentencing and the president championed his case, floating a possible pardon. On Thursday, in an act that stunned the US media, attorney general William Barr said the justice department would drop the case entirely.Trump and his supporters have loudly trumpeted the decision and across Saturday and Sunday the president unleashed a storm of retweets of supporters and conservative commentators attacking targets including Obama, Mueller, Comey and House intelligence committee chair Adam Schiff.The talkshow host retweeted by the president, Buck Sexton, is a former CIA analyst who now hosts a show which he says “speaks truth to power, and cuts through the liberal nonsense coming from the mainstream media”.In another message retweeted by the president, Sexton called former FBI deputy director Andrew McCabe – who Trump fired just short of retirement – “a dishonorable partisan scumbag who has done incalculable damage to the reputation of the FBI and should be sitting in a cell for lying under oath”.In February, the US justice department said it would not charge McCabe over claims he lied to investigators about a media leak.Like Comey, McCabe released a book in which he was highly critical of Trump, who he said acted like a mob boss. McCabe also wrote that Trump had unleashed a “strain of insanity” in American public life.In his own tweets, Trump did not directly address comments by Obama himself which were reported by Yahoo News. The former president told associates the Flynn decision was “the kind of stuff where you begin to get worried that basic – not just institutional norms – but our basic understanding of rule of law is at risk”.But Trump’s anger was evident.“When are the Fake Journalists,” he wrote on Sunday, “who received unwarranted Pulitzer Prizes for Russia, Russia, Russia, and the Impeachment Scam, going to turn in their tarnished awards so they can be given to the real journalists who got it right. I’ll give you the names, there are plenty of them!”The president did not immediately name anyone.But in 2018 the Pulitzer committee did, awarding its prize for national reporting jointly to the Washington Post and the New York Times for “deeply sourced, relentlessly reported coverage in the public interest that dramatically furthered the nation’s understanding of Russian interference in the 2016 presidential election and its connections to the Trump campaign, the president-elect’s transition team and his eventual administration.”Trump has further reason to resent the Pulitzer committee and question its choices.In 2019, for example, a New York Times team won a Pulitzer for an “exhaustive 18-month investigation of President Donald Trump’s finances that debunked his claims of self-made wealth and revealed a business empire riddled with tax dodges”.The Wall Street Journal, meanwhile, was rewarded for “uncovering President Trump’s secret payoffs to two women during his campaign who claimed to have had affairs with him, and the web of supporters who facilitated the transactions, triggering criminal inquiries and calls for impeachment”.Trump’s actual impeachment, which he survived at trial in the Senate in February, concerned his attempts to have Ukraine investigate his political rivals. No reporter or news outlet won a 2020 Pulitzer, announced this week, for its coverage of that affair.Trump’s focus on Sunday remained largely on the Russia investigation despite continuing developments in the coronavirus outbreak, which has infected more than 1.3m Americans and killed nearly 80,000.With cases confirmed among White House aides close to the president, top public health experts including Dr Anthony Fauci in quarantine and Trump reported by the New York Times to be “spooked”, the president claimed in a rare non-Russia-related tweet: “We are getting great marks for the handling of the CoronaVirus pandemic.”He also attacked Obama and his vice-president, Joe Biden, the presumptive Democratic nominee for president this year, over their response to the “disaster known as H1N1 Swine Flu” in 2009.Trump also marked a special day in the calendar, tweeting in trademark capitals: “HAPPY MOTHER’S DAY!”

By the height of the Watergate scandal in 1974, virtually every major newspaper in America had called for President Richard Nixon's resignation. During the investigation and impeachment of Bill Clinton in 1998, more than 100 newspapers called for him to resign.

After leaving the Republican Party and supporting the impeachment of President Donald Trump, Rep. Justin Amash of Michigan is exploring a presidential run as a Libertarian.

WASHINGTON -- Shortly after admitting guilt to a federal judge in December 2017 for lying to the FBI, Michael Flynn issued a statement saying what he did was wrong, and "through my faith in God, I am working to set things right."It turns out that the only higher power that Flynn needed was Attorney General William Barr.Barr's extraordinary decision to drop the criminal case against Flynn shocked legal experts, won President Donald Trump's praise and prompted a career prosecutor to quit the case. It was the latest in Barr's steady effort to undo the results of the investigation by Robert Mueller, the special counsel. Barr has portrayed his effort as rectifying injustice, and the president more bluntly as an exercise in political payback.In his decisions and public comments over the past year, Barr has built an alternate narrative to the one that Mueller laid out in his voluminous report. Where the special counsel focused on Russia's expansive effort to interfere in the 2016 election, the Trump campaign's openness to it and the president's determination to impede the inquiry, Barr has focused instead on the investigators. He has suggested that they were unleashed by law enforcement and intelligence officials bent on bringing political harm to Trump.Barr has also mischaracterized the findings of the Mueller investigation, questioned why it began in the first place, used legal maneuvers to undo its courtroom successes and opened his own investigation by a hand-picked prosecutor that could bring criminal charges against former U.S. officials who played a part in setting the original inquiry into motion. Mueller and Barr, once close friends, have been like two students standing shoulder to shoulder at a blackboard: What one has diligently written down, the other has tried to steadily erase.In an interview Thursday with CBS News, Barr said he considered the Flynn case to be "part of a number of related acts -- and we're looking at the whole pattern of conduct." (The same day, Trump called it "just one piece of a very dishonest puzzle.")Recent disclosures about the FBI's handling of the Flynn case raise questions about why the bureau's leadership sent agents to interview Flynn without coordinating with top Justice Department officials, the latest in a series of revelations about FBI abuses in politically charged investigations in recent years. Barr, however, even suggested that a theory of the case embraced by Mueller and his team might have made them blind to the facts."One of the things you have to guard against, both as a prosecutor and I think as an investigator, is that if you get too wedded to a particular outcome and you're pursuing a particular agenda, you close your eyes to anything that sort of doesn't fit with your preconception," he said. "And I think that's probably the phenomenon we're looking at here."But when Mueller made his findings public, many criticized him for doing the opposite. His conclusions, especially about whether Trump had committed any obstruction of justice offenses by impeding the inquiry, were dense, burdened by legalese and appeared to reflect a tortured debate among the special counsel's team. They delivered no easy sound bite that the president's opponents could seize upon -- allowing Trump to distort the judgments by calling them a vindication of his behavior.The Mueller report "bends over backwards" to show that the special counsel's team considered all of the legal and political ramifications of investigating a sitting president, said Matthew J. Jacobs, a former federal prosecutor and now a partner at Vinson & Elkins."It gives the benefit of the doubt to the subject of the investigation that in any quote-unquote normal criminal case doesn't happen and wouldn't exist," said Jacobs, who once worked for Mueller at the U.S. attorney's office in San Francisco.Barr's decision to drop the charges against Flynn was "unlike anything I've seen before," Jacobs said, adding that he saw no evidence whatsoever "that Gen. Flynn was set up or entrapped."In an unsolicited memo he wrote to the White House while still a lawyer in private practice in 2018, Barr unspooled his thoughts about what he called a "fatally misconceived" obstruction of justice theory the special counsel was reportedly pursuing as part of his investigation. Trump named him attorney general months later, but during his confirmation hearing, he pledged not to interfere with the work of Mueller and his team.Barr drew criticism for the way he characterized Mueller's findings last year in a four-page letter that -- for weeks -- served as the public's only picture of Mueller's 22-month investigation. Mueller privately wrote to the attorney general, saying he had mischaracterized the findings -- a letter Barr described as "snitty" -- and over time, Barr has repeatedly tried to emphasize the harm done to the investigative targets of the FBI and the special counsel's office.Barr's handling of the Mueller findings prompted a stinging rebuke in March from a Republican-appointed federal judge, who said the attorney general put forward a "distorted" and "misleading" account of the findings and lacked credibility on the topic.Barr has long insisted that he works independently of the White House, and in February, he said that Trump's public comments about the Justice Department sometimes made it "impossible" for him to do his job. Those comments came after Barr and other top department officials intervened to try to reduce a prison sentence in another case brought during the Mueller investigation: That of Roger Stone, a longtime friend of the president's who was convicted of lying to Congress, witness tampering and obstruction of justice in a bid to thwart a congressional inquiry that threatened Trump.The president has made it clear both to aides and foreign officials that he sees Barr as a crucial ally in the grinding battle against his perceived enemies. Last July, the day after Mueller's congressional testimony seemed to lower the curtain on a more than two-year drama that had imperiled the Trump presidency, Trump was on the phone with President Volodymyr Zelenskiy of Ukraine asking him to assist the attorney general in an investigation "to get to the bottom of" how the Russia investigation began."As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller," the president said. The requests to Zelenskiy helped form the basis of an impeachment case against Trump in the ensuing months.Weeks after that phone call, Barr was on a plane to Rome with John Durham -- the prosecutor leading the Justice Department's investigation into the origins of the Russia investigation -- to seek evidence from Italian officials that might bolster a conspiracy theory long held by Trump: That American intelligence and law enforcement officials plotted with American allies to try to prevent him from winning the presidency in 2016.They did not appear to find any evidence. It remains uncertain, however, what Durham will find over his investigation, expected to finish sometime this year, and what effect it will have on the legacy of the Mueller investigation.The president, of course, has not waited to pass judgment. He has long publicly complained that the Flynn case was a product of a cabal of former officials conspiring against him, and he seems certain to promote its collapse as he ramps up his campaign for reelectionOn Thursday, the day the Justice Department dropped the criminal charges against Flynn -- the first top White House official to have been ensnared in the Russia investigation -- Trump was on the phone with President Vladimir Putin of Russia to celebrate the 75th anniversary of the end of World War II in Europe.Trump boasted that the call came at an opportune time. Things are "coming in line showing what a hoax this whole investigation was -- it was a total disgrace.""I wouldn't be surprised," he said he told Putin, "if you see a lot of things happen over the next number of weeks."This article originally appeared in The New York Times.(C) 2020 The New York Times Company

Senate Republicans are quietly beginning to contemplate the possibility of an election-year confirmation battle for the Supreme Court.

Justice Ruth Bader Ginsburg’s hospitalization this week and the looming end of the Supreme Court’s term raise the prospect of yet another prized vacancy for President Donald Trump. And if there is a surprise opening or retirement in the months before the presidential election, GOP senators plan to act on it, despite denying President Barack Obama a Supreme Court seat in an election year.

Republicans say they wish Ginsburg a swift recovery and have no inside knowledge of a retirement but are prepared to move if a vacancy presents itself.

“We’re going to fill it” if there is one, said Sen. John Barrasso (R-Wyo.), the No. 3 GOP leader. “With Justice Scalia ... people might not have thought he was the one, because he wasn’t the oldest at the time. You just never know.”

So in what’s already been the most consequential year for politics in a generation, with a presidential impeachment and a rampaging pandemic, Capitol Hill could get significantly crazier.

“If you thought the Kavanaugh hearing was contentious this would probably be that on steroids,” said Sen. John Cornyn (R-Texas). “Nevertheless, if the president makes a nomination then it’s our responsibility to take it up.”

While no one says they expect a Supreme Court vacancy, GOP senators also acknowledge it’s plausible that Trump could find himself with a third nominee. And one thing is clear: Most Republicans have no qualms about approving a Supreme Court pick from a president in their own party, even if it is an election year.

In 2016, Senate Majority Leader Mitch McConnell (R-Ky.) said voters should decide in the election which president should choose the next Supreme Court justice because the Senate and White House were controlled by different parties. And in the Trump era, he’s repeatedly asserted that he would fill a vacancy in 2020.

McConnell and his allies argue the situation is different because Republicans control both the White House and the Senate. They say that makes the situation far different than when Obama was president and McConnell refused to even hold a hearing for Merrick Garland.

Democrats acknowledge they could get run over in the next eight months. Supreme Court nominees can now be confirmed by a bare majority after McConnell changed the rules in 2017 to overcome a Democratic filibuster of Neil Gorsuch, Antonin Scalia’s successor.

“They’re not troubled by inconsistencies,” said Sen. Tim Kaine (D-Va.). “It would be completely inconsistent with everything that was said [in 2016]. But we knew when they were saying it they didn’t mean it. We knew that was a situational answer.”

The remaining months of Trump’s first term could also be the last chance the GOP has to put its stamp on the courts for years to come. McConnell could lose his majority or Trump could be ousted by former Vice President Joe Biden — which means Republicans would take no chances and move quickly to fill an empty seat on the high court.

“My guess is yes. That’s ultimately a decision the leader makes. But I think you’ve heard him speak to the subject before. He believes if there was a vacancy, he’d fill it,” said Sen. John Thune of South Dakota, the GOP whip. “Confirmation hearings in the age of COIVD-19 would be very interesting but I’m sure no less contentious than the last one.”

Republican senators are not publicly pushing for a vacancy nor are they advertising their plans to fill any that presents itself. However, the last two vacancies occurred in election years. And Trump already has a list of potential Supreme Court picks.

In a brief interview, Senate Judiciary Chairman Lindsey Graham (R-S.C.) declined to say there was a cut-off to when a new vacancy might be considered. His predecessor, Sen. Chuck Grassley (R-Iowa), declined to hold a hearing for Garland.

Sen. Roy Blunt (R-Mo.) said a Supreme Court opening represents the “ultimate hypothetical” — but one Republicans would be prepared to respond to whenever it occurs.

“There’s no cut off,” said Blunt, the No. 4 GOP leader.

In addition to Ginsburg’s health, senators are also keeping tabs on whether any other justices will retire. Four justices are 70 or older: Ginsburg, Stephen Breyer, Clarence Thomas and Samuel Alito.

When Anthony Kennedy retired in 2018 and sparked the confirmation fight over Justice Brett Kavanaugh, he made his announcement in late June after the spring term concluded. That allowed the Senate GOP to confirm Kavanaugh before midterms that threatened their majority.

Sen. Josh Hawley (R-Mo.), a former Supreme Court clerk, said he had heard no inside chatter about an impending vacancy. But he said that given the age of the court’s current members, “you have to be prepared.”

“I would be very surprised if we didn’t move forward with hearings and try to fill the seat. I’m sure it would be very controversial, principally because of the balance of the court,” Hawley said. “If it’s replacing someone like Justice Ginsburg, that would be a big shift, that would be a big deal.”

In that hypothetical scenario, the GOP would need the support of 50 of its 53-member majority to fill a vacancy. Vice President Mike Pence can cast a tie-breaking vote.

Still, at least one Republican senator believes the approaching election should weigh on any decision to fill an empty seat.

“You’re coming pretty close, though, to the presidential election,” said Sen. Lisa Murkowski (R-Alaska), the only Republican to oppose Kavanaugh. “That is something that you factor into these discussions about how we move forward.”