I am all for power politics, but President Trump and Senate Majority Leader McConnell may be better off not trying to ram through a new justice before the election. It is questionable whether McConnell will have the votes for it anyway, given that Republicans hold a razor-thin majority and that Senators Susan Collins and Lisa Murkowski have already stated they won't support a vote on a nominee before inauguration day. Further, Senators Collins, Cory Gardner, Thom Tillis, Martha McSalley, Steve Daines, Lindsey Graham, and other Republicans are in tight races, and a rush to confirm a justice before November 3 may do more harm than good to their re-election campaigns.

Rather, the open seat may present Trump with an opportunity to re-set a race that the Democrats have tried to frame as a referendum on his handling of COVID, the economic devastation that followed, and race relations. If Trump chooses not to nominate a replacement for Justice Ginsburg now, a key focus of the race will be who gets to select the next Supreme Court justice and change the balance of the court, perhaps for several decades. That change could turn out the Republican base in record numbers.

Further, there is a downside to pushing through a new justice. If the Democrats win the presidency and take control of the Senate, the fact that Trump and McConnell used a power play to seat a justice before the election may give Democrats an excuse to try to pack the court (increase the number of justices), as FDR tried to do during the New Deal era.

Having said all that, the Republican leaders may calculate that acting now is a unique opportunity to put a solid conservative majority in place for the next few decades -- and critically, before what may be a contested election. Further, a confirmation fight leading up to the election may be exactly the recipe to fire up evangelicals and conservatives to vote.

In the end, I trust the wily McConnell, whose decision to withhold a vote on Merrick Garland probably contributed more to Trump’s election than any other factor, to make the right call.

Josh Kantrow is a cyber-security lawyer in Chicago

Image: Mitch McConnell Caricature by DonkeyHotey. CC BY 2.0.