Consider the nature of McConnell’s gamble. If Trump wins, there is little upside to the current rush to fill the late Justice Ginsburg’s seat; the Senate would easily be able to confirm Barrett just a few weeks later, and with far broader public confidence. However, if Trump loses, Republicans might not have enough votes during the lame-duck session to confirm Barrett, because a handful of Republican senators—in particular, senators from states that seem poised to break for Biden—could hesitate to so brazenly contravene the will of voters. As the New York Times reporter Maggie Haberman tweeted, “That Trump advisers and allies are pushing so hard to vote [on Barrett’s confirmation] before the election is a sign of how many of them believe he’s likely to lose.” This seems even truer now that McConnell is determined to push through with his original confirmation schedule despite the spread of the coronavirus among Senate Republicans. By forcing a vote prior to Election Day, McConnell is ensuring that electoral loss—which is to say, the public’s will—won’t prevent conservatives from filling the seat.
Mary Ziegler: A dangerous moment for the Court
The Supreme Court is not a political body, but it is part of the democratic system, in which its justices are nominated by an elected president and confirmed by the elected Senate. This setup becomes more tenuous as presidential elections draw near. While it’s hard to identify a clear dividing line, at some point a presidential appointment to the Court is not an expression of democratic will, but a usurpation of citizens’ power—an attempt to use rapidly vanishing political control to capture enduring institutional strength unresponsive to the public. This is reflected in the clear majority of voters who believe the present Court vacancy should be filled by the winner of the presidential election.
In the history of the United States, only three Supreme Court justices have been nominated and confirmed in an election year by an incumbent who went on to lose. All three confirmations occurred more than 100 days prior to the election. Two took place in quick succession in the late 19th century. The most recent example, in 1932, was Benjamin Cardozo, a rare nominee who transcended partisanship. At the time of his nomination, The New York Times wrote that, “seldom, if ever, in the history of the Court has an appointment been so universally commended.” Unlike Cardozo, Barrett’s nomination has already provoked intense partisan rancor.
What’s more, never in modern American history has a defeated incumbent been allowed to fill a vacancy in the lame-duck period before leaving office.* In 1828, John Quincy Adams tried to make a nomination after losing to Andrew Jackson, but the Senate refused to vote and Jackson filled the seat. Presidents closing out their second term have not fared much better. Millard Fillmore, James Buchanan, and Lyndon B. Johnson all made doomed attempts, but again and again, the Senate refused, and the newly inaugurated president—Franklin Pierce, Abraham Lincoln, and Richard Nixon, respectively—ultimately filled the seat.