With just 44 days left in the 2020 election, the death of Ruth Bader Ginsburg — and Senate Republicans’ commitment to try to confirm her replacement before the election — drops a hugely volatile free radical into an already combustible race. Below, an extended look at how Democrats and Republicans see the SCOTUS political tea leaves.
* How Republicans see the politics: For President Donald Trump and Senate Republicans, anything that changes the national conversation from the chief executive’s mishandling of the coronavirus is a good thing. A fight over whether he should try to fill Ruth Bader Ginsburg’s vacant seat before the 2016 election — and whether Senate Majority Leader Mitch McConnell can muster 50 votes to confirm the pick — isn’t a sure winner for Republicans, but it’s better, in their minds, to the sure loser that is a referendum election on the pandemic (and Trump’s handling of it).
What we know a fight over a court seat will do is rally the Republican base behind Trump. The GOP’s hardcore conservatives have generally stuck with Trump almost solely because of the number of federal judges he has appointed and the Senate has confirmed. Many may have wandered a bit amid Trump’s demonstrably poor response to the Covid-19 pandemic, but a court fight may be just what the President and his campaign need to bring those lingerers back into the fold.
The argument to do that is (relatively) simple: You may not like how Trump tweets or acts, but look at what he has done — in particular a total overhaul of the federal judiciary that ensures a conservative bent in the judicial branch for decades to come. (I continue to believe the single strongest moment of Trump’s 2016 campaign was when he released a list of who he might choose as Supreme Court nominees.)
If Trump can change the conversation in the race into one focused on the battle for the judiciary, it will have a cascading effect in Republicans’ fight for the Senate majority too.
Only two Republican senators up for reelection this November — Maine’s Susan Collins and Colorado’s Cory Gardner — represent states where Trump lost to Hillary Clinton in 2016.
Which means the 21 other Republican seats are in territory that Trump won. Which, in theory, would mean that if they could simply turn out the GOP vote they would have a good chance at winning. (This is, of course, not true in all 21 of the states. Take Arizona, for example, where the partisanship of the state is clearly moving away from Republicans.)
The quick endorsement of a vote pre-election on Trump’s eventual nominee by the likes of Georgia’s Kelly Loeffler and North Carolina’s Thom Tillis — both of whom face serious challenges this fall — reflects that belief within the GOP strategist world.
* How Democrats see the politics: If Trump’s entire first term has been defined by norm-busting, then this attempt to confirm a justice less than two months before a presidential election is the final act of this trend.
Democrats will relentlessly point out all of the quotes from Republican senators during the attempted 2016 confirmation of Merrick Garland to the seat of the late Justice Antonin Scalia as proof-positive of GOP hypocrisy.
And there are LOTS of quotes. Perhaps the two best/worst:
* “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.” — Texas Sen. Ted Cruz
* “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.” — South Carolina Sen. Lindsey Graham
Pretty bad, right?
Democrats will combine that hypocrisy attack with ramped-up pressure on senators in tough races like Gardner and Iowa’s Joni Ernst — as well as appeals to institutionalists like retiring Sen. Lamar Alexander (Tennessee) and Sen. Rob Portman (Ohio) to keep McConnell from the 50 votes he needs.
If Republicans do wind up confirming Trump’s pick — and, at the moment, they can only lose one more GOP senator after both Collins and Alaska Sen. Lisa Murkowski have said they oppose making the appointment before the election — then Democrats will be faced with whether they make good on a MASSIVE threat making the rounds this weekend: Adding seats to the Supreme Court if they retake the majority this fall.
Several prominent Democrats have floated the idea of expanding the court, including California Sen. Kamala Harris, Joe Biden’s running mate. (Former South Bend Mayor Pete Buttigieg said during his presidential campaign that he would go from 9 seats to 15 on the court.)
Biden, however, has been resistant to that idea. “I would not get into court packing,” he said at an October 2019 debate. “We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
The question for Democrats, then, is how much — if at all — they inject the idea of adding court seats into the fall campaign. On the one hand, it might excite their base. On the other, it could play into Trump’s hands by giving a preview of what Democratic control at all levels of government might look like.
The Point: This is a high-wire walk with no net for both parties. And how they navigate this unexpected development could well shape not just the 2020 election, but the future of two parties over the next decade.