Why didn't the Republican party confirm Judge Barrett into the Supreme Court after the election?

Question

The confirmation of Judge Barrett is quite controversial to say the least and puts as many as 7 Republican Senators at risk of losing their re-election campaign. So why not do a bait-and-switch?

1. Declare that no nominee will be put in place until the election, pretending to follow precedent
2. Wait for the election to be over
3. Immediately nominate Judge Barrett into the Supreme Court

If Trump wins the Presidential election, no one will oppose this move. If he doesn't, you still get to nominate your judge into the court while giving swing state Republicans a better chance at the election. There will surely be a lot of anger over this decision, but voters have a short memory and other concerns will take over by November 2022. So why act out in the open and nominate Barrett right now?

Answer 1

I have decided to address each of your steps individually, as no one seems to have done yet. I say that just so you understand the structure of my answer here.

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1. Declare that no nominee will be put in place until the election, pretending to follow precedent

The key thing to recognize here is that Republicans don't see themselves as breaking precedent here in the first place. As Republican Senator Ted Cruz has said, for example (I have tried to keep the proper emphasis as the original, but I may have missed a thing or two, so I recon you could assume it's mine):

“If the president and the Senate are of the same party, the Senate confirms the nominee. And if the president and the Senate are of different parties for a vacancy during a presidential election year, the Senate does not confirm the nominee. What does history show us? Of the 29 times this has happened, 19 of them, the president and Senate were of the same party, 19 times. The Senate confirmed the nominee 17 of those times. History is clear: You have a president and the Senate of the same party, that nominee’s getting confirmed, assuming they’re qualified.”

"Pretending to follow precedent" would be a concession on that they are breaking precedent right now, which Republicans hold that they are not. Doing so would be a political defeat.

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2. Wait for the election to be over

If they wait, they risk losing the election. If they were to lose the Senate after this election, they risk the nomination looking illegitimate. Some Democratic Senators have already called the nomination illegitimate. Doing so after a lost election will give their opponents more credibility in this allegation. That would just be shooting themselves in the foot. If the nomination is already going to get attacks from their political opponents anyway, why give them more room for attack? I am speculating here, but I'd imagine most Republicans figured they had nothing to lose anyway. So why risk it?

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3. Immediately nominate Judge Barrett into the Supreme Court

As you have mentioned, if Republicans keep the Senate and the Executive (President), then obviously no harm done.

On the other hand, if they lost either of those things in the election, they would have a much harder time going forward with the nomination and still appearing legitimate.

Besides being a political defeat, this action would likely also anger their base, since Republicans had the Executive, who put forth a nomination, and had the votes in the Senate to confirm her, but chose to wait and lost because of that. Especially angering for the Republican base is that they wouldn't have had to wait (obviously).

So, that's two things you don't want to do: lose a political battle and anger your base. I'm assuming that Republicans here weighed their options and figured this outcome wasn't worth the risk. So they decided to push forward with the nomination.

Answer 2

Because there is fear that Trump will lose the election and they wouldn't be able to justify the nomination after the election.

https://www.theguardian.com/us-news/2020/oct/10/republicans-presidential-election-fears-biden-trump

There is also the angle that they need a full supreme court in order to handle any election disputes. It should be noted that the court is currently 5 Republicans and 3 Democrats and adding a new justice would make it 6 and 3 which would make it harder to get the swing votes to go to the Democrats side.

https://abcnews.go.com/Politics/trump-argues-nominee-needed-supreme-court-time-vote/story?id=73192756

“We need nine justices. You need that,” Trump told reporters Tuesday, as he went on to stoke baseless claims that the election will be rife with fraud.

A tweet from Trump suggesting that the results must be done on the 3rd which suggests that he needs the new justice in place before the election.

https://twitter.com/realDonaldTrump/status/1320873664296804354

Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.

Answer 3

Pushing though a Justice before the election has several potential advantages:

• It's an accomplishment that could please their base, which potentially gains them a few point in political races for the Senate and Presidency. This bump hasn't shown up, to date, but there's still some time before the election
• It gives them a powerful advantage in certain soon-to-be-heard Supreme Court cases, including challenges to the ACA and Roe v Wade, which could attain some long-desired Conservative goals, even if it costs the Republicans the Senate
• It gives them an (ostensible, but less reliable) advantage if any part of the upcoming election is challenged in the courts. This is particularly desired by Trump, who has already suggested multiple times that he will challenge any election result he deems 'illegitimate', and who likely believes the court will be 'loyal' to him, and will rule consistently in his favor, allowing him a chance to secure reelection even if he loses at the polls. Trump has said this openly:

  • "I think having a 4-4 situation is not a good situation, if you get that. I don't know that you'd get that. I think it should be 8-nothing or 9-nothing, but just in case it should be more political than it should be, I think it's very important to have a ninth justice."

  • “I think this will end up in the Supreme Court," Trump said, per pool reports. "And I think it's very important that we have nine justices, and I think the system is going to go very quickly. I'll be submitting at five o'clock on Saturday the name of the person that I chose for the most important of all positions."

There's really no downside for the GOP in taking this action now, as opposed to later. They are clearly aware that they are likely to lose both the Presidency and the Senate, and clearly eager to lock down what they can before they do. If they can get the added benefit of damaging the ACA and abortion rights before they are forced into a subordinate role, so being it.

Answer 4

If Trump wins the Presidential election, no one will oppose this move. If he doesn't, you still get to nominate your judge into the court while giving swing state Republicans a better chance at the election

The main argument they made 4 years ago against Obama's nomination in an election year hold more weight this year against Trump's nomination because there is much less time before the election. Apparently the republican senators hypocrisy knows some bounds.

Lindsey Graham:

I strongly support giving the American people a voice in choosing the next Supreme Court nominee by electing a new president.

Mitch McConnel

Rarely does a Supreme Court vacancy occur in the final year of a presidential term … Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in

Marco Rubio

I don’t think we should be moving on a nominee in the last year of this president’s term – I would say that if it was a Republican president.

David Perdue

The very balance of our nation’s highest court is in serious jeopardy. As a member of the Senate Judiciary Committee, I will do everything in my power to encourage the president and Senate leadership not to start this process until we hear from the American people.

Rob Portman

I believe the best thing for the country is to trust the American people to weigh in on who should make a lifetime appointment that could reshape the Supreme Court

Chuck Grassley

The American people shouldn’t be denied a voice

It really has nothing to do with the time period between the election and the new president's taking office. The whole purpose of any delay is to give the American people a voice in the new supreme court justice because it is an election year. That means the incoming president should be the one to nominate the next supreme court justice.

If Trump were to lose the election, it would be nearly impossible politically to justify approving Trump's nominations against the clear wishes the people expressed at the ballot box. Any attempt to do this would likely be seen even by republicans as political gamesmanship which the entire country is tired of. Senators are always asked questions by the media and saying 'we did it to give swing state republican candidates an advantage, but we always planned to approve Trump's nomination is not something that will not go over well, even with their base.

Their squirmy weasel-words and twisted thinking is already hard for most people to handle. They explain their earlier comments as only valid in an election year when the president's party is not in control of the Senate.

Answer 5

You are missing several outcomes. What if the election flips the Senate? If either Trump loses the Presidential election or if the Senatorial elections flip the Senate, a lame duck appointment becomes highly suspect and is much more likely to result in a rejection by the Senate. A lame duck appointment certainly would succeed if Trump wins and if the Republicans continue to hold 50 or more seats in the Senate, but most likely would fail if either Biden wins or if the Senate is flipped. That is a big gamble.

Having the Senatorial vote prior to the election will almost certainly rile up Democratic voters more than it will fire up Republican voters in states such as New York and California. Those states don't count. The only states that count are the half dozen or so swing states. The hope of the Trump campaign is that this pre-election appointment will do more to encourage the few conservative voters in swing states who had not been planning on voting to vote for Trump than it will to encourage the few anti-Trump voters in those states to vote for Biden.

One of the key reasons that evangelicals and conservative Catholics support Trump so strongly is that the Trump administration, in conjunction with Mitch McConnell, have appointed a huge number of conservative judges. This last minute appointment serves to remind conservatives that despite Trump's shortcomings, he is the candidate they should vote for.

In short, a post-election Senatorial vote is fraught with peril and may not help drive the Presidential election in favor of Trump. A pre-election Senatorial vote is not quite as nuclear and may well help drive the Presidential election in favor of Trump.

Answer 6

Consider what could happen if they wait. November 3rd rolls around, and the Supreme Court still sits at 8 members. Its a close race, with the presidential election being decided by just a few thousand votes in one state. The candidate behind in votes sues, saying there was fraud or errors in counting. The case is appealed to the Supreme Court. The court is split, 4 say Biden won, the other 4 say Trump won. If you thought Bush v. Gore was ugly, this would be downright hideous. Historically, this kind of thing is how many civil wars start. Given how high tensions have been, I can't blame Republicans for wanting an odd number of justices.

Answer 7

I do think the moral aspect of claiming to leave the nomination to the incoming President/Senate and then doing a complete U-turn plays a role. Voters might or might not have a short memory but it's certainly a pretty extreme move.

But apart from that, as I wrote in a comment I think your question is also based on the false premise that going the 'moderate' or restrained route is somehow an automatic vote winner in the swing states. Just like Trump didn't win the 2016 election by pretending to be a centrist bridge builder, Republican senators now are not thinking they get a significant electoral edge if they pretend to care a lot about protocol or how they would like the other side to behave if they were in the minority.

Answer 8

In addition to the issues already covered in Chipster's answer, there are a few more reasons not to do this:

Not Much Time

The window for the confirmation would be very narrow. While it's about 2.5 months from the election until the Presidential inauguration, the new Congress convenes on Jan 3, only 2 months after the election. And there are typically significant recesses during that time, due to the holiday season.

There is enough time for someone to be nominated and confirmed on an expedited basis, but it leaves little room for error anything delays the nomination. For example, if 11th-hour accusations are brought against the candidate, they would want time to investigate them before holding a vote.

If something came to light during the hearings that caused the Senate to decide not to confirm the nominee, then they would be on an insanely tight schedule for the President to nominate someone else and then the Senate run through the entire vetting and confirmation process again, and it would be in the middle of the holidays when the Senators would highly prefer to be at home with their families.

Most Senators Want To Get Re-Elected Next Time, Too

You say voters have a short memory, but what has been the single-largest point of debate surrounding the appointment of Justice Barrett? It's been reactions to what happened 4 years ago when the Senate refused to confirm Garland. It's bad enough to go back on promises you made 4 years ago when you were making a promise about a hypothetical situation. It's a lot worse to go back on a promise that you made 4 weeks ago about this exact particular case, obviously intending to violate it from the beginning.

The reaction to that on an election 2 years later won't be as bad as it would be on an election tomorrow, but it will definitely not be zero. Voters' memories may be short, but the Internet's memory isn't and neither is the other party's, who will surely play videos of you making that statement on repeat on their campaign ads the next time around.

Only 1/3 Of The Senate Is Up For Election

During each campaign cycle, only 1/3 of the Senate seats are up for election. Thus, the Senators who will be taking a massive hit on this at the polls in 2 years are not the same ones who are under political pressure at the polls now. Regardless of how willing politicians may be to brazenly lie to their constituents, very few of them will be willing to sacrifice their own political career in order to reduce political pressure on some of their colleagues.

Holding The Vote Has Positive (To Them) Consequences On The Current Elections, Too

While it's true that some GOP Senators may be facing additional pressure at the polls because of the vote, others will likely experience a benefit from it. It's hard to understate what replacing Ruth Bader Ginsburg with a conservative justice means to the conservative voting base. There are few things that will energize the conservative voting base more than that.

Also, this affects not only the Senators, but also for the President who still wields considerable influence over Senators and who is himself facing a tough re-election bid. The conservative base will absolutely see this as a large accomplishment for President Trump. And then those additional people showing up to vote for Trump and perhaps also a GOP Senator will also be likely to continue ticking boxes next to GOP candidates all the way down the rest of the ballot.

Answer 9

In addition to some of the reasons stated, it was also apparently very important to the GOP/Mitch McConnell to confirm Barrett on Hillary Clinton's birthday of all things.

Amy Coney Barrett, confirmed. Happy Birthday, @HillaryClinton!

JudiciaryGOP

It was a wonderful birthday present for Hillary Clinton to confirm Amy Coney Barrett to the Supreme Court Monday night on her birthday. Oh, I’m sure she was so grateful. So grateful.

Mitch McConnell

Those quotes aren't satire. It's super weird, but apparently there's some hateful obsession with Hillary Clinton among GOP voters and this kind of thing is considered good politics somehow.

Answer 10

As a hiring manager, the day someone gives me their notice, I begin the hiring process to fill the vacancy. Once I have chosen a candidate, I submit the candidate to HR. That is my job. HR does their part and confirms my nomination after performing a background check. Then they extend an offer. That is their job. As soon as possible, the new employee begins work. That is their job. When we work together, we are able to provide consistent quality service to our customers.

Amid all of the nonsense that goes on in politics and the media, the simple facts are often overlooked, obscured or purposefully hidden. But this process is really quite simple. When there is a vacancy on the supreme court, it is the responsibility of the president to nominate a successor and it the responsibility of the senate to confirm. Parties and party affiliation have no bearing on whether or when an elected official performs their appointed responsibilities. They should get up each morning and do their job every day just like all of the rest of us. Suggesting that they should not or that there are special conditions or circumstances in which they should shirk in their duly sworn and appointed duties, is an attempt to disrupt the rightful administration of government.

There is nothing controversial about politicians doing their job. We should expect our elected representatives to do their job every day and not just when it is politically expedient for them and their friends. For representatives at the national level, this includes a direct mandate to

...establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity..

2020 has clearly been a down year in this regard, but the nomination and confirmation of a new supreme court justice was actually an efficient and proper discharge of responsibilities compared to obvious and increasing failures in many other areas.

Edit: For the downvoters, am I wrong because it's 2020? Would you have upvoted if I posted the same answer in 2016? Would you have upvoted if Trump had nominated Merrick Garland? The lack of substantive comments to go with the downvotes probably answers those questions.