Washington, D.C. – U.S. Senator Pat Toomey (R-Pa.) issued the following statement regarding the Supreme Court vacancy: 

“Four years ago, I noted that my decision to oppose moving forward with the Supreme Court confirmation process for Judge Merrick Garland was related to the circumstances present at the time.[1]

“In 2016, the White House and the Senate, which share equally the constitutional authority for filling a Supreme Court vacancy, were controlled by different parties. When power is divided during a presidential election year, the Senate’s general practice has been to leave open a Supreme Court vacancy so that the voters may speak and possibly resolve the disagreement created by the division.[2]Such practice has been emphatically endorsed by Senate Minority Leader Chuck Schumer[3](D-N.Y.), and even the current Democratic nominee for president, former Senator and Vice President Joe Biden.[4] Republicans were following this Senate practice, and the Biden-Schumer approach, when we exercised our constitutional prerogative not to fill the 2016 vacancy.

“The circumstances surrounding the current vacancy are, in fact, different. While there is a presidential election this year, the White House and the Senate are currently both controlled by the same party. The Senate’s historical practice has been to fill Supreme Court vacancies in these circumstances.[5] This is also a view Democrats once held. We know this because every single Democratic senator pushed for Judge Garland’s confirmation and told anyone who would listen that if Democrats controlled the Senate—that is, if they were in the position that Republicans are in today—they would have confirmed him. Are we now supposed to operate by two different sets of rules that systematically advantage the Democrats?

“The difference between these Senate practices makes perfect sense. When divided government creates tension between the two organs responsible for filling a position on the Supreme Court, it is completely justifiable to leave open a vacancy until the voters have had a chance to speak. In 2016, the voters spoke by electing a Republican president and a Republican-controlled Senate. In 2018, the voters expanded the Republican majority in the Senate. Since the voters resolved the tension between the White House and the Senate, there is no reason to delay filling this vacancy.

“I will evaluate President Trump’s nominee to replace Justice Ruth Bader Ginsburg based on whether the nominee has the character, intellect, and experience needed to serve on our nation’s highest court. These are the same objective, non-partisan criteria that I have used to evaluate judicial nominees under both President Obama and President Trump. Based on these criteria, I supported President Obama's nomination of then-Judge Sonia Sotomayor to the U.S. Supreme Court and voted to confirm almost 70 percent of the judges nominated by President Obama and considered by the Senate during my time in office. If the person President Trump nominates also meets these criteria, I will vote to confirm this nominee.”

Background:

1 “Toomey would not say whether he would apply the same election-year logic in a hypothetical situation where Obama or a Republican president might seek to replace a liberal justice. He said he would address each situation as it arises, but, he said, “this one I think is very clear.” Mark Levy, Associated Press, February 18, 2016.

2 Fifteen times in U.S. history, a Supreme Court vacancy arose in a presidential election year and the president nominated someone that year. In seven of those 15 instances, the White House and the Senate were controlled by different parties. Only two of those seven nominations were confirmed, the last in 1888. Data compiled from public sources.

3“[F]or the rest of this president’s term … I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.” Senator Chuck Schumer, a year and a half before the end of President George W. Bush's term, American Constitution Society, July 27, 2007.

4 “This exception was popularized in 1992 by Sen. Joe Biden, then chairman of the Judiciary Committee. He urged President George H.W. Bush to refrain from making any Supreme Court nominations in that election year. What made 1992 different from other election years, Mr. Biden explained, was that ‘divided Government’ reflected an absence of a ‘nationwide consensus’ on constitutional philosophy. ‘Action on a Supreme Court nomination must be put off until after the election campaign is over,’ the future vice president insisted.” David B. Rivkin Jr. and Andrew M. Grossman, Wall Street Journal, September 19, 2020 

5Fifteen times in U.S. history, a Supreme Court vacancy arose in a presidential election year and the president nominated someone that year. In eight of those 15 instances, the White House and the Senate were controlled by the same party. Seven of those eight nominations were confirmed. The only such nominee who was not confirmed faced bipartisan opposition over serious questions of judicial ethics and personal finances. Data compiled from public sources.