The long-term consequences are the ones that will matter: whether Democrats will seek their revenge by attempting to pack the Court with liberal-friendly justices after the election, for example, and whether any hope of bipartisan cooperation on judicial nominations is officially dead. “With the erosion of norms, I do worry that, long-term, both parties will be more tempted to put on the bench more explicit partisans, rather than searching for legal excellence,” Nunziata said. In a different time, under a different president, it’s possible that the vote on Barrett’s nomination would have gone differently—less drama, more senators willing to cross party lines. Barrett got unlucky with the timing of her nomination, becoming the face of a political fight she had no control over. “For her sake, and for the sake of the republic, it would have been nice had this process occurred earlier. But that’s not the way Supreme Court vacancies work,” Nunziata said.
Republicans understood perfectly that Democrats would protest against installing a justice to the bench just a few days before a potentially transformative election. But Republicans are determined to use their power while they still have it. “It may not be prudent to proceed with filling a vacancy at this time,” Nunziata said. “But we don’t live in an age or enjoy a politics marked by prudence.”