Will Republicans' rank hypocrisy hinder their rush to replace Ginsburg?

With news of Ruth Bader GinsburgRuth Bader GinsburgSupreme Court's approval rating dips to 49 percent  Anti-abortion movement eyes its holy grail Abortion rights face most difficult test yet at Supreme Court MORE's death, Democrats gasped in sadness and dejection. The grief persisted, but soon it dawned that politics may well boomerang on Republicans.

The timing will appear unseemly; Ginsburg left a message that her successor should be chosen by the president elected in November.

Almost no Democrat is torn by the brutal fight ahead over Ginsburg's successor. They can either oppose any nominee or say, “Wait until the election outcome.”

ADVERTISEMENT

To be sure, a bitter battle over a likely right-wing nominee will energize Republican supporters, evangelicals and conservative Catholics. Trump supporters immediately said this is a political gift, also shifting the election focus away from the president's tragic mishandling of the deadly Coronavirus pandemic and throwing an unknown into an election that clearly was tilting to the democrats.

Republican senators in competitive races, however, are squirming, having in 2016 vocally supported Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell: 'It never occurred to me' convincing Americans to get vaccinated would be difficult The 17 Republicans who voted to advance the Senate infrastructure bill Senate votes to take up infrastructure deal MORE to deny even a hearing for President Obama's Supreme Court nominee Merrick GarlandMerrick GarlandDOJ issues warnings to states on voting laws and audits White House seeks to shield Biden from GOP attacks on crime issue Protesters shut down Greene-Gaetz Jan. 6 event MORE. They said then that in an election year it should be left up the voters. Garland was nominated in March of that year and was left twisting in the wind for ten months over what the Republican leader insisted was principle.

McConnell, less than an hour and a half after Ginsburg's death was announced, said this time there will be a vote on the expected nominee. 

McConnell's hypocrisy is stunning even by Washington standards.

Few, though, are surprised that the Kentucky Republican put partisan politics ahead of principle — assuming, of course, there was ever any principle other than partisan politics involved.

McConnell’s blithe about-face may not be as easy for some of his Republican colleagues, who are necessary to win a confirmation. Alaska Sen. Lisa MurkowskiLisa Ann MurkowskiThe 17 Republicans who voted to advance the Senate infrastructure bill Senate votes to take up infrastructure deal The Hill's 12:30 Report - Presented by Facebook - Officers give grueling, horrific accounts of Jan. 6 MORE already indicated she would not vote to confirm a nominee before this year’s election. While Maine's Sen. Susan CollinsSusan Margaret CollinsThe 17 Republicans who voted to advance the Senate infrastructure bill Senate votes to take up infrastructure deal Gyms, hotels, bus companies make last-ditch plea for aid MORE also said in a statement Saturday that no vote should be held before the election, she went further, saying: “the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on Nov. 3.” The Maine Republican, facing a tough reelection, will see this as her get-out-of-jail move to counter her unpopular vote for Supreme Court Justice Brett Kavanaugh.

ADVERTISEMENT

As of today, opponents would need two more Republicans to oppose any nominee. The best prospects, though not necessarily good ones, would be Sen. Mitt RomneyWillard (Mitt) Mitt RomneyThe 17 Republicans who voted to advance the Senate infrastructure bill Senate votes to take up infrastructure deal Trump slams Romney, Senate GOP over infrastructure deal MORE (R-Utah), Sen. Cory GardnerCory GardnerEx-Sen. Cory Gardner joins lobbying firm Biden administration reverses Trump changes it says 'undermined' conservation program Gardner to lead new GOP super PAC ahead of midterms MORE (R-Colo.) and Sen. Dan SullivanDaniel Scott SullivanSenate confirms Biden pick for No. 2 role at Interior Concerns grow over China's Taiwan plans China conducts amphibious landing drill near Taiwan after senators' visit MORE (R-Alaska). They have yet to state a position.

There are a half-dozen incumbent Senate Republicans facing difficult reelections who will have to square a confirmation vote with their self-proclaimed stand — on principle — against Garland four years ago.

Sen. Steve DainesSteven (Steve) David DainesSenate committee advances bipartisan energy infrastructure bill  Hillicon Valley: Lina Khan faces major FTC test | Amazon calls for her recusal | Warren taps commodities watchdog to probe Google Senators propose bill to help private sector defend against hackers MORE (R-Mont.) said in 2016 he would oppose any hearings or votes for a lifetime Supreme Court nominee “until the American people elect a new president.” Sen. Sullivan said his home-state Alaskans “deserve to have a voice” in the Supreme Court appointment. Similar sentiments were voiced by Sen. Gardner and Sen. David Purdue (R-Ga.).

Senate Judiciary Committee Chairman Lindsey GrahamLindsey Olin GrahamThe 17 Republicans who voted to advance the Senate infrastructure bill Senate votes to take up infrastructure deal Senators say they have deal on 'major issues' in infrastructure talks MORE (R-S.C.) said two years ago he wouldn't act on a Supreme Court nominee in 2020. Nobody believes Graham, also facing a tough reelection, will keep his word. Indeed, he has already said circumstances are different this time and he supports filling the vacancy. Graham likely will lead the effort to confirm a Trump nominee.

Other duplicitous reversals have already begun.

In 2016, Sen. Joni ErnstJoni Kay ErnstGrassley pressured to run as Democrats set sights on Iowa Republicans focus tax hike opposition on capital gains change Biden signs bill to bolster crime victims fund MORE (R-Iowa) declared, “We must wait to see what the people say in November, and then our next president will put forth a nominee." This year, she not only says Trump should fill a vacancy, she started fundraising off Justice Ginsburg’s death shortly after it was announced Friday night.

Sen. Thom TillisThomas (Thom) Roland TillisThe 17 Republicans who voted to advance the Senate infrastructure bill Senate votes to take up infrastructure deal GOP, Democrats battle over masks in House, Senate MORE (R-N.C.), four years ago in a newspaper column, praised the Republican “promise to use this vacancy as an opportunity to let the American people have a voice.” Now, Tillis's position is the people be damned, he's supporting “the well qualified and conservative jurist President Trump will nominate.”

Republicans who hold a 53 to 47 majority could lose three votes and — with Vice President Pence as a tie-breaker — still prevail.

If, as is likely, the Democrat Mark Kelly wins the Arizona Senate race over Martha McSallyMartha Elizabeth McSallySchumer, Tim Scott lead as Senate fundraising pace heats up GOP group launches million ad campaign pressing Kelly on filibuster Democrats facing tough reelections back bipartisan infrastructure deal MORE, an appointed senator, he could take office after the election; in a lame duck session, Republicans then could only afford two defections. But the full canvassing of votes in Arizona probably won't be complete until the end of November; a vote may be held by then.

McConnell is likely to call for hearings on a court nominee in October and then a vote after the election, feeling this might mitigate any pressure on the embattled Republicans.

However, when Trump makes a choice, particularly a controversial one like Amy Barrett, currently a judge on the Seventh Circuit Court of Appeals, it's unlikely that candidates will be able to get through Nov. 3 without taking a position.

Judge Barrett, who was a law clerk of Supreme Court Justice Antonin Scalia, is an intellectually forceful conservative who would support chipping away at the Roe v Wade abortion decision. She was confirmed for the Appeals Court, 55 to 43, largely along party lines.

ADVERTISEMENT

There would be some red flags for both sides. Trump often overplays his hand, especially with an election right around the corner. Earlier, Democrats made an issue of Barrett's Catholicism which would be a huge mistake. It's unclear whether most Democrats will have the discipline to focus on opposition to overturning Roe v Wade, where popular opinion is with them, and not on opposition to abortion generally, where the public is divided.

As an election issue, the Supreme Court generally helps Republicans more, as their base is more passionate about the issue. But Democrats hope this highly visible fight — over a successor to the highly popular “Notorious RBG” — will energize their base as well.

Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for the Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then the International New York Times and Bloomberg View. He hosts 2020 Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.