I agree. I was not urging anyone to take the high road when I pointed out the hypocrisy of making the late term appointment. I was actually trying to discuss the political strategies and tactics involved.
I think it boils down to basically the following points to consider:
1. If trump does not make an appointment before election day, how will that play with the public? By public, I mean the moderates or independents that are not already locked in to a party no matter what. Will they be more likely to vote for Trump or not? Flip side, if Trump does make the nomination and gets the appointment through, how will that affect the undecided voters?
My personal call (and I have a poor record of accurate political prognostications) is that pushing the nomination through will swing many of the undecided/independent voters to vote against Trump. Not making the nomination will swing more of them to vote for Trump since they will not see him as being as hypocritical.
2. If Trump does not make an appointment before the election, how will it affect the two bases? Are the Democrats more likely to show up to vote in hope of winning the presidency so they can make the nomination? Are the Republicans more likely to show up to help get Trump re-elected to control the nomination? Flip side, if Trump does make the nomination, are the members of either base more likely to not vote because of this?
My personal call on this is not making the nomination is more likely to affect both bases to turn out. as the nomination will be viewed as a reward for whichever party wins. Pushing the nomination through bring out many of the Democrats because of their being upset at the future of the SCOTUS being more conservative.
3. If Trump does get the nomination through and the appointment made before the election, what are the effects? Will it cost the Republicans the presidency or control of the Senate? What will the effect be on the court cases that come as a result of the election?
My personal call is that making the appointment would cost the Republicans the presidency and control of the senate. It may even cost them some control of states (legislature or governors).
4. If Trump makes the appointment and the Democrats do win, what punishment will they inflict (packing the court with more members that are liberal, removing the filibuster completely, etc.)?
This is actually irrelevant in this examination IMO, because they have already shown that they will push through anything they want without trying to work with the Republicans. They are going to do all of these whenever they win and get a chance no matter what. This is also a point where the Republicans need to learn from the Democrats and start doing the same thing.
Conclusion:
I do not think Trump should make the nomination before the election, or maybe start the process of vetting the candidate but no public announcement or senate hearing until Nov. 4th, the day after the election. This get more people out to vote, but alienates the fewest people. The appointment can still be made by Trump while he is a lame duck if necessary. If he wins as I think he will, then no one can complain about when the appointment was made.
I am not concerned about the court cases coming in after the election. I am not as sure that it will be a 4-4 vote on anything. Roberts is not guaranteed to vote as a conservative, but in most of the cases I see coming, he will vote to uphold the law. The challenges I foresee are trouble for the Democrats because they involve an established precedent - you cannot change the rules on an election while the races are under way. That includes allowing the mail-in ballots for everyone, especially if the law does not specifically say that already. I think most of those desicions would be 5-3 anyway.