We say this not primarily because of the hypocrisy Senate Majority Leader Mitch McConnell (R-Ky.) asks his caucus to embrace, though that is reason enough. Denying President Barack Obama’s 2016 nomination of Merrick Garland on the pretext that it was a presidential election year, only to ram through Judge Barrett a few weeks before the 2020 presidential election, would be an exercise in raw, unprincipled power that no one would soon forget. Her confirmation would reverberate for many years, poisoning the Senate and sapping the court’s credibility. Americans would fight about the makeup of the court rather than address the challenges the nation faces. Senators who ignore these facts, on the principle that Judge Barrett is smart and qualified, fool themselves into cooperating with what would be the single greatest act of judicial politicization in the modern era.
But even for senators who have accommodated themselves to Mr. McConnell’s situational ethics — Sen. Mitt Romney (R-Utah), for example, who joined the Senate after the Garland disgrace — there is a more urgent reason to delay: the potential for Judge Barrett’s confirmation to stain the nation’s choice of president. Mr. Trump has been clear why he wants Senate Republicans to rush through Judge Barrett: He seeks a friendly justice on the court who could help him win the election not by attracting the most votes but by legitimizing his claims that non-Trump votes are fraudulent. Judge Barrett has refused to commit to recusing herself in election-related cases, at one point bristling at Democratic senators for questioning her integrity when they asked for such a commitment.
The recusal question is not about the nominee’s integrity but about the following scenario: Republicans rush Judge Barrett onto the court as the president insists he needs her to rule his way on election lawsuits; then Justice Barrett casts the deciding vote in a 5-to-4 ruling that invalidates late-arriving absentee ballots in Pennsylvania, throwing the election to Mr. Trump despite the fact that more people tried to vote for Democratic presidential nominee Joe Biden. The court’s reputation would be shattered, as would the public’s faith in democracy. Cementing a conservative majority on the court is not worth such a price.
Mr. Trump has made clear that he intends to cry fraud if he loses the election and seek to enlist the courts in support. Confirming Judge Barrett before the election under such circumstances carries an unacceptable risk. There is no comparable downside to waiting until after the votes are counted to confirm her — unless her precipitous confirmation really is about tilting the election.