In keeping with the topsy-turvy tenor of this tumultuous year, the oft-discussed “October surprise” arrived with a bang in September with the passing of Justice Ruth Bader Ginsburg. May her memory be a blessing.

If it is possible to further escalate the election noise, intensity and stakes, the timing of this Supreme Court vacancy is just the ingredient. Any vacancy tends to have that effect these days; this one doubly so against the backdrop of a similar 2016 vacancy and given Ginsburg’s status as a progressive icon.

Let’s first dispatch with the question that by all rights should be a conversation-stopper and deal-breaker. Mitch McConnell and his functionaries set a horrible precedent in 2016 in denying Obama nominee Merrick Garland so much as a hearing under the rhetorical pretext that an appointment of such magnitude should wait for the election and be the province of the incoming president.

Mind you, Justice Antonin Scalia died 269 days prior to the 2016 election while Justice Ginsburg succumbed just 46 before the coming election day.

To McConnell and his band of thieves, 269 days was too proximate but 46 days is all the time in the world.

While the 2016 paradigm is a problematic one (government ought to continue to function even with an election looming), it is precedent nonetheless and a highly sensitive, recent one.

Of course, there is now a stated rationale for why the situation of a Ginsburg vacancy in 2020 is wholly different from that of the Scalia vacancy four years ago. We are told in somber tones coming from serious faces, skillfully masking the cynical smirk you know is there, that holding the seat vacant until the election only applies when the Senate and White House are controlled by different parties.

Oh, and that the Court might need the full complement of nine justices to rule on any election challenge – as if that potentiality was not also present the last time out.

For anyone in doubt, this is called spin. It is not serious-minded and has nothing to do with principle. At its essence, this is about partisan advantage and the all-consuming battle to tilt the Supreme Court this way or that given the institution’s unhealthy primacy in American governance.

There is a word for those who waxed eloquent as to how keeping the seat open in 2016 was the honorable thing to do, but who now, conveniently and shamelessly, insist that this vacancy must be filled with all haste. That word is hypocrite.

Though those of opposite mindset who demanded a hearing and vote on Garland but now wish to deep-six or slow-walk a Trump nomination are hardly paragons of consistency either. But at least they can point to recent practice and rightfully point to geese and ganders and something about sauce.

All of which brings us to Colorado Sen. Cory Gardner and the live grenade Trump and McConnell just handed him. The phrase, “damned if he does, damned if he doesn’t,” was coined with this situation in mind. Gardner had no good option. In that predicament, Gardner picked the frayed but familiar path – heed Trump; do nothing to upset the base; and ignore any past utterances to the contrary.

Trump’s commitment to a conservative judiciary is purely transactional. The constituency that cares about such appointments above all else carried Trump to his unexpected victory and remains the core of his base.

Far be it from me to read Trump’s mind or McConnell’s abacus. But my surmise is that Trump will make an appointment in the coming days, but that there will be no real push for a Senate vote prior to the November election. Better to let the nomination sit there and use it as a tool to gin up enthusiasm among social conservatives.

The real action then will occur in the lame-duck session of Congress between the election and the swearing in of new senators on January 3rd followed by the presidential inauguration on January 20th. If Trump manages a come-from-behind reelection, the Senate, even with a number of soon-to-be ex-members (including our own Gardner staring at new career prospects and more family time), will predictably ratify his choice. If Trump loses his reelection bid, and regardless of the composition of the incoming senate, the Republican attitude may well be one of, “what do we have to lose”.

For those in full-blown panic as to what this appointment might mean for Roe v. Wade, my advice is to take a breath. I am not the first to suggest that modern medical technology is on a collision course with the schedule of trimesters detailed in that decision. Moreover, overturning this 47-year precedent is not assured even with an additional conservative justice. Many on that flank understand that the issue entails enormous political peril in a country that still leans notably to the pro-choice side.

Democrats are not without their options if the election goes in their direction. Joe Biden is on record against “court-packing”, but few would be surprised if his views are malleable. An FDR-style, nakedly self-serving scheme is not the answer. But there may be other remedies. Such as setting aside a designated, equal number of bench seats for Democrats and Republicans with the balance of the Court to be selected by consensus of those partisans. The idea of judicial term limits might also enter the equation to limit the lifetime stakes.

The ultimate reform, even if currently hard to contemplate, would be to reduce the Supreme Court’s central role in American life. Plenty of other western nations govern themselves decently well without such judicial omnipotence. But that is not happening anytime soon and would require other attendant changes, starting with a functioning legislative branch that does its job. An adjustment to the public ethos of, “see you in court,” would also be called for.

In the meantime, whatever your conception of any afterlife, it is a healing thought to envision dear friends Ruth Bader Ginsburg and Antonin Scalia soaking in an operatic favorite while reliving old Constitutional arguments in a camaraderie and good cheer that are less and less a feature of our political system.

Were it only possible for the rest of us to adopt such grace and mutual respect in the here and now.

Eric Sondermann is a Colorado-based independent political commentator. His column appears regularly on Sundays in ColoradoPolitics. Reach him at EWS@EricSondermann.com; follow him at @EricSondermann