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Analysis: Push to replace Justice Ginsburg six weeks before election is both hypocritical and savvy

Cornyn, Cruz and other GOP senators insisted in early 2016 that the election eight months away was too close to allow Obama to fill a vacancy.

WASHINGTON – The Supreme Court vacancy left by the death of Justice Ruth Bader Ginsburg threw a monkey wrench into the presidential race with just 46 days to go. And it created a major new issue in the Texas race between three-term Sen. John Cornyn and Democrat MJ Hegar.

The White House and a chorus of Senate Republicans vowed Saturday to push through a replacement in the few weeks remaining before Election Day, with uncertain implications for the elections.

Yet in early 2016, a month after conservative Justice Antonin Scalia’s unexpected death, Cornyn argued that President Barack Obama was a “lame duck” whose nominee should be shelved because the election was already underway.

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That was with nearly eight months to go before Election Day.

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“It’s only a matter of fundamental fairness to apply the same rules to the same situation, no matter who’s in the majority or who’s in the minority,” Cornyn argued on the Senate floor on March 17, 2016.

The GOP argument now is rather different. It’s OK to fill a vacancy in the final days of a presidency as long as the Senate and presidency are controlled by the same party. Obama was a Democrat facing a GOP Senate.

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What looks like crass opportunism or blatant hypocrisy to some looks like pragmatic leadership and good lawyering to others.

The Republican base in Texas would surely turn on Cornyn if he didn’t promote the idea of filling this vacancy. But a confirmation fight will reinvigorate partisans on both sides.

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Trump made clear Saturday that he won’t wait long.

Majority Leader Mitch McConnell vowed a confirmation vote for any nominee submitted by President Donald Trump. Cornyn retweeted the vow to replace the court’s most liberal member with a conservative, shifting its ideological balance perhaps for a generation.

Yet in early 2016, the Texan argued that before a Democratic president should be able to replace the court’s most conservative member, voters should have a say.

“The next Supreme Court justice could well change the balance of the Supreme Court for a generation and fundamentally reshape American society in the process. So the people should have a chance for input and should have a voice,” Cornyn argued on March 15, 2016, seven months before the next election.

Hegar called out Cornyn on Saturday for blatant hypocrisy, given the way he and other Republicans derailed Obama’s nomination of Judge Merrick Garland, refusing him a hearing, let alone a vote and keeping the Scalia seat vacant long enough for Trump to take office and fill it.

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“By flagrantly violating precedent they themselves championed when it served their agenda, Senator Cornyn, Ted Cruz, and Mitch McConnell are showing the American people once again that they lack the integrity to act in the best interests of our country,” Hegar said. “The American voters know the Supreme Court is on the ballot. We will determine who we are as a country on Nov. 3rd, and it should be the president and Senate we elect who select a qualified individual to serve a lifetime appointment.”

Consistency and politics don’t always go hand in hand, and the history of judicial nomination fights is rife with shifting positions and righteous indignation at tactics senators from one party or the other had been using a year earlier.

Mixed political impact

The political implications of such a fight aren’t as straightforward as it may seem.

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Voters were well aware that control of the court was on the ballot on Nov. 3. Ginsburg’s death only underscored the point.

Cruz’s argument is that this is precisely what Trump was elected for. So there’s no good reason not to move ahead with a nomination before the election.

Indeed, Trump rallied conservative voters in 2016 by vowing to stock the courts with conservatives, and he has continued with that tack, recently releasing a new list of 20 potential nominees that included Cruz along with other senators, prosecutors and judges.

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How might this play out?

First, it projects a huge lack of confidence in Trump’s reelection prospects for Republicans — who felt no compunction about keeping a Supreme Court seat vacant for a year at the end of Obama’s term — to now insist on urgency.

The rush reflects deep anxiety that Trump may lose. Polls show that’s a real possibility. The slim 53-47 GOP majority in the Senate is also in peril.

On the other hand, delivering this rare prize — not just a Supreme Court seat but one that shifts the court’s balance — will remind Republicans why they picked him in the first place, and what the stakes are for the next four years, when there might be as many as two or three more vacancies.

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In one scenario, Trump wins reelection but Democrats wrest control of the Senate. A justice named by a president who’s been reelected would have more legitimacy than one named by a president who’s just lost, even if the confirmation comes from a lame duck Senate.

In another scenario, Republicans lose both the White House and Senate, in which case a justice confirmed now would be tainted forever. No justice in history has been installed under such circumstances for a lifetime post on the nation’s highest court.

Trump’s goals include not only filling the court vacancy but keeping his own seat behind the Resolute Desk in the Oval Office for another four years – and retaining GOP control of the Senate, so he has any shot of enacting his agenda on immigration, the border wall, taxes, trade and so on, and as an insurance policy against another impeachment.

Filling the vacancy before Election Day takes some wind out of the sails for Republican-leaning voters.

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One of Trump’s strongest arguments to voters is that he’ll keep stocking the courts with conservatives. As long as the Ginsburg seat stays vacant, that remains an enticement — stronger perhaps than the good will and gratitude he’ll generate by having already filled that seat.

Democrats, on the other hand, will be utterly inflamed if Republicans ram through a confirmation to replace liberal icon Ginsburg.

That’s a one-two punch, if Trump demotivates his own voters and revs up the other side.