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Noah Feldman

Republicans Would Regret Replacing Ginsburg Before Election

Forcing through a new Supreme Court nominee could produce a Democratic backlash none of us want to see.

Do you remember Merrick Garland? Because Democrats do. 

Do you remember Merrick Garland? Because Democrats do. 

Photographer: Alex Wong/Getty Images

President Donald Trump and Senate Majority Leader Mitch McConnell wasted no time after Justice Ruth Bader Ginsburg died, immediately announcing their intent to nominate and confirm a replacement. Tempting as it is for Republicans to install a third Supreme Court justice during Trump’s first term, it would nevertheless be a serious mistake — and potentially a historic one — for Senate Republicans to go along. The result would not only likely be the long-term erosion of the Supreme Court’s legitimacy as a third branch of government, but also a backlash so strong it would hurt the Republican Party itself.

The reason for Republicans to hold off isn’t the extraordinary hypocrisy they’re showing by pushing a rapid confirmation now, despite holding Justice Antonin Scalia’s seat open in 2016. Unfortunately, we don’t live in a world where voters will punish a party for arrant hypocrisy. Republicans and Democrats alike all understood that McConnell was making a specious argument when he claimed the March nomination of Judge Merrick Garland was too close to the November election to deserve a vote. We all knew it was power politics then; and we all know it is power politics now.