Consider the nature of McConnell’s gamble. If Trump wins, there is little upside to the current rush to fill the late Justice Ruth Bader 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.
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.