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Former Senators On Filling Ginsburg's Seat At The Supreme Court


President Trump says he will probably announce his pick to replace Supreme Court Justice Ruth Bader Ginsburg on Saturday. And he says he's considering five women for the job. To get some insight on how his pick will reverberate and how confirmation hearings may play out, we called two former senators who served during the tense confirmation of Brett Kavanaugh. Claire McCaskill, a Democratic senator from Missouri, did not support Kavanaugh; Jeff Flake, an Arizona Republican, did. And now both agree the Senate needs to slow down.

JEFF FLAKE: Well, I think that the institution is more important than any short-term political gain. And this would really, I think, damage the institution if we rush through a nominee at this point given what was said before.

PFEIFFER: You think it would be damaging because it would look like hypocrisy?

FLAKE: Yes. And I think the Democrats may respond in kind if they happen to take the majority. There's already talk among some of, you know, getting rid of the filibuster and then packing the court. And then that just escalates in a horrible way.

PFEIFFER: And Sen. McCaskill, the same question to you - when should the Senate vote on President Trump's nominee?

CLAIRE MCCASKILL: The Senate should not vote on a nominee until a new president is inaugurated in January, no matter who that president is going to be. That is the precedent that was set in 2016, which was historical, but it was a precedent set by the Republican majority that is still in power. So by them reversing on this, they have said very loudly and very clearly to United States we believe in power over principle.

PFEIFFER: So both of you have said you do not feel that the Senate should vote now on President Trump's nominee. A follow-up question then to you, Sen. Flake, what are the chances that the Senate will hold off?

FLAKE: Well, not very good right now (laughter). It looks as if the president is intent on making the nomination, and there'll be tremendous pressure on Mitch McConnell to get a vote. There are unknowns, and I think that there are a lot of Republican members who are squeamish about this at this point. But there is tremendous pressure from the base and from the Trump base, if you will, to move forward right now.

PFEIFFER: Sen. McCaskill, we've talked about the possibility that if President Trump's nominee is voted on and confirmed, many Democrats are calling on what's been described as retribution if a new justice is seated before Inauguration Day, options like ending the filibuster, adding seats to the Supreme Court. Do you consider those good ideas, fair ideas?

MCCASKILL: It's the wrong time to even discuss things like that. I think we have to work very hard at trying to convince those senators, those Republican senators, that find themselves in the same position I was in with the Kavanaugh nomination. They're up for election in states like Colorado.

PFEIFFER: I want to push you a bit more because, yes, you're saying they should focus on that, but there is discussion happening of these moves that are being described as retribution.

MCCASKILL: I don't think this is the time to talk about that because all that does is damage the institution even further. That doesn't help us today. That doesn't help us on November 3 because if the Democrats prevail on November 3, then there will be a lot of leverage to do the things that need to be done to protect the values that our party cares about.

PFEIFFER: Sen. Flake, the Kavanaugh hearings were very ugly, very caustic, very divisive. If hearings happen for another nominee, how do you see those playing out?

FLAKE: Well, I think we ain't seen nothing yet. I fear that it would be a real circus. And as one who was deeply involved in the last one, that's nothing we want to see. I don't think anybody came off well during those hearings. So I hope that we don't go there, that we don't have this nomination fight for the election. But if we do, it's likely to get ugly.

PFEIFFER: And, Sen. McCaskill, do you think if someone is nominated, will the public in some ways think this person was jammed through and perhaps not fully vetted?

MCCASKILL: I don't think there's any question about that. If that were to occur, I think that justice would have an asterisk. And it has been very clear that the president is going to nominate someone who is plainly in favor of overturning Roe v. Wade and overturning the Affordable Health Care Act. And if, in fact, that person is put on the Supreme Court, I think you for sure have two votes against that nominee in Lisa Murkowski and Susan Collins. And then, you know, it's going to be a bare minimum just like Kavanaugh. So we've gone from confirming Ruth Bader Ginsburg by a vote of 93 to 6 to putting people on the Supreme Court with barely 50 votes.

FLAKE: I'm not certain there'll be an asterisk. I think it depends on how the hearings go and who is nominated and how the process plays out. But I hope that there's not. And that's what I hoped during the Kavanaugh hearings. There was already talk at that time that if Democrats took control of the House, that they might impeach Kavanaugh. And that obviously wouldn't be something good for the country. And I hope we don't have anything like that happen this time or even threatened this time.

PFEIFFER: Former Senators Jeff Flake, a Republican from Arizona, and Claire McCaskill, a Democrat from Missouri, thanks to both of you for your time.

MCCASKILL: Thanks, Sacha.

FLAKE: Thank you.

PFEIFFER: We should note that Jeff Flake supports Joe Biden for president. Transcript provided by NPR, Copyright NPR.