Murkowski draws fire over her takes on possible Supreme Court nominee

U.S. Sen. Lisa Murkowski pulled back from an earlier position that the Senate should give a hearing to a nominee to replace the late U.S. Supreme Court Justice Antonin Scalia, saying Thursday that President Obama shouldn't even nominate a replacement.

The day before, Murkowski told reporters at a news conference that the Senate should hold a hearing on a nominee — a position setting her apart from Mitch McConnell, the leader of Murkowski's Republican Senate majority, who said Scalia's vacancy should not be filled.

Then, on Thursday afternoon, Murkowski issued a carefully crafted statement from her official Facebook account saying that there shouldn't be a nominee.

"Given the timing of this vacancy, in the middle of our presidential election, the American people will clearly be weighing in on the direction of the Supreme Court," the statement said. "I urge the president to follow a tradition embraced by both parties over the past 80 years and allow his successor in the White House to select the next Supreme Court justice. If he ignores this precedent, I believe that extraordinary circumstances give the Senate every right to deny the nominee an up or down vote."

The second statement does not appear to expressly contradict the one she issued the day before. But a person could be forgiven for thinking that on Wednesday, Murkowski said it was all right for Obama to nominate a new justice, and on Thursday that she said he shouldn't.

Murkowski, who's running for re-election and lost her GOP primary in 2010 to tea party candidate Joe Miller, drew quick condemnation from conservatives for her initial statement on the vacancy. National talk host Hugh Hewitt said on Twitter that he couldn't support Murkowski's campaign.

"She puts her re-election ahead of my free exercise rights," Hewitt said. "Better a Democrat who is sincere."


Her subsequent statement didn't earn her any points either — Hewitt called it "waffling."

A spokeswoman for Murkowski said Friday that the senator's schedule was full through the evening, making her unavailable for an interview. She was set to hold two campaign events in Wasilla — one with U.S. Rep. Don Young and Alaska's junior U.S. senator, Dan Sullivan.

In a phone interview Friday morning, Margaret Stock, an immigration attorney who this week announced she had dropped her Republican affiliation and was running as an independent against Murkowski, accused the incumbent senator of "putting party politics ahead of the Constitution."

Stock said that the Constitution makes clear that in the event of a Supreme Court vacancy, Obama is supposed to nominate a replacement whom the Senate is supposed to consider, then give an up or down vote. She pointed out that in an opinion piece in the Juneau Empire in 2005, when Republican George W. Bush was president, Murkowski said: "I support an up-or-down vote on all nominations brought to the Senate floor, regardless of the president nominating them or which party controls the Senate."

Now, Stock said, "she took the principled position initially and then she got pressured from her party and she caved in."

Jerry McBeath, a retired University of Alaska Fairbanks political scientist, said in a phone interview that he thought Murkowski's reversal came after she awoke to the danger of another conservative primary challenger like Miller.

"People were warning her about what was going to happen in the Republican primary — Joe Miller was going to come out of the woods again," he said. "She's moving from a moderate position to a partisan position, which is where the leadership of the party has gone after Mitch McConnell's statement — which, by the way, has very little resemblance to historical fact."

It's true that it's been 84 years since there was a vacancy, nomination, and confirmation to the Supreme Court all in an election year.

But since then, only three presidents have been able to make an appointment in an election year, and all chose to do so, according to an analysis by the fact-checking website PolitiFact.

Most recently, President Lyndon Johnson in 1968 nominated Homer Thornberry to fill a vacancy and tried to elevate sitting justice Abe Fortas to replace the retiring chief justice, Earl Warren. Congress failed to confirm both nominations.

Dwight Eisenhower in 1956 appointed William Brennan during a Congressional recess, and Brennan was nominated again and confirmed after Eisenhower's re-election.

In the case of Supreme Court nominees, McBeath said, the "historical record" differs from the "partisan interpretation of our history."

Nathaniel Herz

Nathaniel Herz is an Anchorage-based journalist. He’s been a reporter in Alaska for nearly a decade, with stints at the Anchorage Daily News and Alaska Public Media. Read his newsletter, Northern Journal, at natherz.substack.com