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Unexpected GOP Approval on Replacing Scalia

WASHINGTON (CN) - Sen. Lindsey Graham on Thursday opened a crack in the wall erected by fellow Republicans to block consideration of a Supreme Court nominee.

Defending President Barack Obama's right to choose a replacement for the late Antonin Scalia, the South Carolina conservative promised to have the same opinion come January.

"I just want the members on this side to note, if we lose this election, my view of what the president to come will be able to do is the same," Graham said. "If it is Hillary Clinton or Bernie Sanders, and they send over a qualified nominee, I am going to vote for them."

Graham made his remarks today as the Senate Judiciary Committee set aside its scheduled agenda to tackle the issue that has Republicans vowing not to hold hearings or vote on a new justice until Obama's successor takes office next year.

Trying to shame the blockade, Sen. Patrick Leahy, D-Vt., called it unprecedented for the Senate to deny a Supreme Court nominee a hearing.

"Every single Democrat voted for President Reagan's nominee in a presidential election year," Leahy noted.

Sen. Dianne Feinstein, D-Calif., likewise noted it was a Democratic Senate that confirmed Justice Clarence Thomas in 1991.

"What's happening today is contrary to our committee's practices, even in an election year," said Feinstein, adding that the last time a Supreme Court seat sat vacant for more than a year was during the Civil War.

A three-term senator whose unsuccessful presidential campaign stained the tires of GOP front-runner Donald Trump last year, Graham urged the committee to compromise.

"We don't need to go back to the Civil War to find out where we're headed," he said. "We're headed to changing the rules, probably in a permanent fashion."

While Graham portrayed himself as an outlier, Sen. Chuck Schumer, D-N.Y., quoted recent polls that suggest he is not the only Republican who wants the Senate to hold hearings on Obama-nominated judges.

Voicing moderation that has put him increasingly at odds with hard-line members of his party, Graham warned that obstructionism on this nomination will stifle input from across the aisle on a host of other issues, including the appointment of appellate and district court judges, bringing about an ideologically driven judiciary over time.

"I'll be fighting talk radio when somebody on my side puts up a nut job," he said. "And they will. And I'll fight if I think they're truly a nut job."

"And it's going to happen on your side, too," Graham told his Democratic colleagues.

Graham emphasized that his vote will go to the person who is most qualified.

"I voted for Sotomayor and Kagan not because I would have picked them, but because I thought the president of the United States deserves the right to pick judges of their philosophy, and that goes with winning the White House," he said.

Republicans solidified their position after their majority leader, Sen. Mitch McConnell, had a closed-door meeting with GOP members of the Judiciary Committee, during which all 11 signed a leader pledging to block any hearings on an Obama nominee.

Sen. Chuck Grassley, an Iowa Republican who chairs the Judiciary Committee, called today's discussion futile.

"Everybody knows the nominee isn't getting confirmed, so why the charade?" Grassley asked. "Why all this outrage about a hearing that everyone knows won't result in a nomination?"

"Appealing to the better angels" of her colleagues, by her own words, Feinstein suggested that an eight-member Supreme Court could find it difficult to function.

To this point, Grassley noted the leave of absence taken by Justice Robert H. Jackson from 1945 and 1946 to lead the prosecution of the Nuremberg trials.

Sen. Jeff Sessions, R-Ala., also assured the committee that an eight-member court is able to function, but Graham complained that "the Senate's evolving into a very bad way."

Republicans have found support for their position in a 1992 speech seemingly about this very issue by Vice President Joseph Biden, then a senator for Delaware.

Grassley lauded Biden for purportedly recognizing that confirming a Supreme Court nominee during an election year would be bad for the nominee, the process and the Senate.

"It would be a hyper-political slug fest," Grassley said, adding that "we're already witnessing how raw politics is affecting the process."

Democrats who interpret Biden's remarks differently, however, have noted that the senator was speaking hypothetically in 1992, as no vacancies existed on the court at the time of his comments, though rumors of several retirements swirled.

Sen. Al Franken, D-Minn., suggested Biden had been addressing how to handle the resignation of a justice at the end of a Supreme Court session - in a presidential election year - meant to "game the system."

"We are talking here about confirming someone to replace a justice who has died," Franken said. "Think about how different that is, everybody. Now that's an extraordinary circumstance."

Republicans have also dredged up comments from Sen. Chuck Schumer, D-N.Y., a judiciary committee member who in 2007 said the Senate should not confirm additional nominees by President George W. Bush, "except in extraordinary circumstances.

Grassley balked at Democratic accusations that his party was not upfront about their position, saying Republicans made clear, upfront, what they would do, with "eyes wide open."

"The bottom line is this: We didn't play games, we didn't hide the ball," Grassley said.

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