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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?

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  • Wait until after the election? They may not have a majority after the election. – gerrit Oct 27 '20 at 9:50
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    @gerrit After the election but before the new Senators are sworn in. There is a window which allows that. – D M Oct 27 '20 at 10:19
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    @DM, worth noting that there is a special election for Senate in Arizona and the winner of that gets seated immediately, not wait until January like the others. If the Democrat wins that election, as he is projected to, the Republican majority narrows immediately following the election, making the risk of defections greater. – Seth R Oct 27 '20 at 17:34
  • This isn't enough for a full answer, but one key difference between confirming before or after the elections is whether that confirmed SC judge can participate in SC rulings concerning said election. – Flater Oct 29 '20 at 12:18
  • Not worth a full answer but nobody has said this yet: confirming the judge in record time against the strongest effort of the democrats is a great show of power, that makes them look stronger and possibly attracts some voters. Pulling the "sneaky" after-election-confirmation on the other hand may look desperate and turn some voters off. (coincidentally, I think this also applies to why republicans didn't find a less "controversial" alternative to Kavanaugh) – Pronte Oct 29 '20 at 12:55

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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.


  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.


  1. 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?


  1. 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.

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    This "key thing" answer neglects to account for at least 17 Republican Senators previously on record claiming they'd never confirm any nominee in an election year. – agc Oct 28 '20 at 7:24
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    @agc Nobody said their claim to not be breaking precedent made any sense. – Azor Ahai -him- Oct 28 '20 at 14:31
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    @AzorAhai--hehim: Well, this answer does say that "Republicans don't see themselves at breaking precedent here" [emphasis mine]; it would be more accurate to say that Republicans aren't presenting themselves as breaking precedent here. – ruakh Oct 28 '20 at 23:45
  • @agc That doesn't mean they don't see themselves that way. What a person thinks of themselves doesn't always reflect reality. – user29681 Oct 29 '20 at 18:06
  • @Chipster, Re "That doesn't mean they don't see themselves that way": true, particularly if we allow the reassuring premise that "all Senators are always honest". But if we won't allow that premise, other less edifying possibilities come to mind. – agc Nov 1 '20 at 14:13
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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.

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    Nice answer, but a minor quibble: they don't need a full Supreme Court, the Court is fully capable of operating with 8 Justices – they want an extra Justice to ensure that any 5-4 decisions will be decided in their favor – divibisan Oct 26 '20 at 22:29
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    The second argument does not justify appointing Barrett prior to the election. The day after or even a week after the election would work just as well. Legal challenges to the election, if they arise, will take a month to reach the Supreme Court. Bush v Gore reached the Supreme Court on December 11, 2000, almost five weeks after the election on November 7, 2000. – David Hammen Oct 26 '20 at 22:35
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    "the court is currently 5 Republicans and 3 Democrats", is membership in a political party required to be a judge? Do they not even try to pretend to be impartial? – gerrit Oct 27 '20 at 9:55
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    @gerrit To my knowledge, they aren’t. It’s just verbal shorthand for “5 Republican-nominated and 3 Democrat-nominated judges”. The implication being those judges’ case histories are aligned with their sponsor parties’ positions. – Dai Oct 27 '20 at 12:23
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    @Dai That is sort of misleading, while what you say is true the fact is that the process to nominate and confirm a supreme court justice has turned into an extremely political act which means that the people who get picked to become a justice normally follow the political mindset of the person who nominates them. – Joe W Oct 27 '20 at 12:42
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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.

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    I removed a large section of this answer which was nothing but a diatribe about why the author believes that the republicans in the senate are evil. Please remember that Politics Stack Exchange is not your personal blog. The purpose of this website is to share information, not opinion. – Philipp Oct 27 '20 at 21:21
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    @Philipp: the edit you made was excessive. Some of those comments might be personal opinion, but some of them are simply factual occurrences that need to be specified for this answer to make sense. I'm going to re-edit in a bit and retire some of what you removed (unless you want to discuss it first). – Ted Wrigley Oct 28 '20 at 1:06
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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.

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    "Apparently the republican senators hypocrisy knows some bounds." Perhaps you could leave out such statements. – Mister Verleg Oct 28 '20 at 11:27
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    Yeah, you shouldn't make such unfounded statements. – SQB Oct 29 '20 at 17:50
  • How is that statement lacking foundations? My answer compares the quotes and actions of the republican senators 4 years ago and this year to clearly show their hypocrisy. – Jason Goemaat Oct 29 '20 at 17:58
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    @JasonGoemaat I'm pretty sure SQB's remark about the statement being "unfounded" was a joke playing on the fact that you said (for whatever reason) it "knows some bounds". Or at least that's why I upvoted the comment. Vladimir's comment on the other hand is probably just about the slightly judgemental nature of the statement, even if ultimately true. – Christian Rau Oct 29 '20 at 18:17
  • There is no hypocrisy of the Republicans because the people had a voice in the nomination of ACB. Their voice was in the election of 2016 — which is the relevant election for the vacancy left by RBG in October 2020. – Rain Willow Oct 29 '20 at 21:37
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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.

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    Doesn't matter if the Senate flips, they have until January 8th to confirm the new judge. – JonathanReez Oct 26 '20 at 22:19
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    The new senate isn't seated until January 3rd so Republicans will still have the control of the senate until that date. The big issue is if they are still willing to vote on a nomination after a sitting president loses an election and set precedent. – Joe W Oct 26 '20 at 22:22
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    @DavidHammen the Senate also had a 4 year old rule instigated by the people currently running the Senate that you shouldn't appoint SCJs in an election year. And a fairly old rule that SCJ nominations were subject to a 60 vote cloture rule. If you relied on either of these you'd be disappointed at the moment. Why would lame duck session rules be any more sacrosanct? – Jontia Oct 26 '20 at 22:53
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    The senate also had a longstanding tradition of holding hearings on presidential nominations but they seemed to stop doing that when they could during the Obama years. There is no reason to believe that they couldn't force through the nomination even if they lose the white house and the senate. – Joe W Oct 26 '20 at 22:54
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    Of note, two current GOP Senators are appointed fill-ins. If they lose, they get replaced before January 3. – Damila Oct 27 '20 at 2:50
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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.

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    The last three GOP nominations, including Amy Coney Barrett, were lawyers for the Bush team in Bush vs Gore. – Simon Richter Oct 27 '20 at 9:11
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    To be honest a 6-3 decision on a Trump victory via the courts rather than the ballots would certain be decide as illegitimate and with a Democrat house plus Senate possible the fallout is difficult to predict. 4-4 Would almost be better as it wouldn't put the Supreme Court in the middle of the legislative bun fight. – Jontia Oct 27 '20 at 10:17
  • @SimonRichter I wonder if that had much bearing on why they were selected. Wouldn't be surprised if Trump or his advisors saw this kind of thing coming years ago. – Ryan_L Oct 28 '20 at 5:41
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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.

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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.

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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.

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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.

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    What a load of nonsense. Filling key roles in your company a week before a new CEO and senior management come in would be mad. Besides, I have witnessed real life examples of hiring decisions for infinitely less important jobs taking longer than the confirmation of ACB – waltzfordebs Oct 27 '20 at 21:22
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    @waltzfordebs, if a new president is elected, he will take office on January 20, not next week, so the nomination was made more than 3 months before the end of the term. Further, a "new CEO and senior management team" has not been selected nor is there any guarantee that such will be the case. The currently elected officials still owe the American people the service they took an oath to perform. Your analogy does not hold up. – DSway Oct 27 '20 at 23:53
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    Re "...they should shirk in their duly sworn and appointed duties...": this seems like special pleading in light of the Senate's partisan stonewalling with the Garland nomination. – agc Oct 28 '20 at 6:40
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    +1 for your answer. It seems most of the people who have answered here are probably from a foreign country or have never taken a Civics course. There's this little document called the US Constitution which mandates what happened happen (ie: appointing a new Justice). The entire thing was done within the law. All posts here except yours presents the action as though it were all political. There's never been a situation like this where both the Senate and Pres are both in the same party just before an election, so there is no precedence here. Don't conflate it (that's to others, not you!) – Pᴀᴜʟsᴛᴇʀ2 Oct 28 '20 at 14:30
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    @FrozenKiwi, The senate failed to do their job in 2016 and did their job in 2020. Those are the facts based on US law. You don't like the nominee and by many standards she isn't a great choice for a supreme court justice. Garland was a better nominee in 2016. Everyone who saw what happened in 2016 had/has the opportunity to replace their representatives. And everyone has freedom to speak and assemble to promote representatives of their choice. – DSway Oct 28 '20 at 17:19

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