A Supreme Court Strategy Guide

Democrats can make the Republicans pay a steep political price for rigging the courts

Right after the shocking and sad news about the death of Justice Ruth Bader Ginsburg, I fired off some quick thoughts about the coming fight over her Supreme Court seat. In the days since, we’ve all learned more about the state of play. McConnell will almost certainly try to fill the seat before the election. The Republicans — even Mitt Romney — have fallen in line. And Trump sees Ginsburg death as a potential boon for his flagging campaign.

With the light of day, some more info and a modicum less shock, I want to offer some more thoughts on a strategy and message to make Republicans pay a steep political price for rigging the Supreme Court.

Ignore the Conventional Wisdom

Before we get into some message recommendations, I just want to dispense with a particularly stupid piece of conventional wisdom that has taken hold among some the pundits and strategists. There is an assumption among many that the politics of a late campaign Supreme Court confirmation fight benefits Trump and Senate Republicans. To be clear, no one knows how the politics will play out. It depends on how Democrats and Republicans play their hands, but the early evidence suggest that Democrats start with the political high ground in this fight. A Data for Progress poll from earlier this week found that a majority of Americans — including 22 percent of Republicans — “agree that the seat should be filled after the upcoming election in order to give voters a say in the process.”

A national poll by Marquette Law School fielded right before Ginsburg’s death found that 59 percent of Biden supporters said the Supreme Court was "very important" to their votes compared to only 51 percent of Trump voters. This is a reversal from 2016. Trump won the voters who said the Supreme Court was "the most important factor" in their vote by 15 points in 2016.

So, beware of the pundit with total confidence and zero data. Now that I have that off my chest, here are some strategic messaging recommendations for all of us that will be talking and tweeting about the Supreme Court for the next few weeks.

Policy Not Process

A huge early focus of the commentary about the Republican effort to fill the Ginsburg seat has understandably been about the galling hypocrisy and shameless cynicism from Mitch McConnell and Senate Republicans. I get it. The way the Republicans reversed their 2016 position without blinking an eye is absolutely infuriating. But some opinion research conducted by Democratic groups in the last few days suggests that is the wrong course of action. The research that was shared with me found that messages that focused on McConnell’s hypocrisy tested very poorly. This makes intuitive sense because voters expect hypocrisy from politicians and process arguments are always the least effective arguments — especially with less politically engaged voters.

While process-focused messages don’t work, policy ones are quite effective. The best way to make Republicans pay a price for that hypocrisy is to tie the court issue to the issues that we know are priorities to voters. A message about health care shifted the race in Biden’s favor and makes voters more likely to believe the seat should not be filled:

Republicans are rushing to put a justice on the Supreme Court who will back their lawsuit to overturn the Affordable Care Act, kicking millions off their health care and raising their costs in the middle of the pandemic.

Republican efforts to repeal the ACA, eliminate protections for people with preexisting protections, and kick millions of their health care was politically devastating in 2018 and can be again in 2020. The political power of the issue is exponentially greater now that we are in the middle of a pandemic. By rushing a nominee when the court is scheduled to hear a case to decide the fate of the ACA one week after the election, Trump and McConnell are leading with their chins. We should punch them right in the mouth (politically) over and over again for next forty days or so.

The Republican effort to confirm a Supreme Court justice is also an opportunity to hammer them for their misplaced priorities.

Trump and {insert a Republican you hate here} are rushing forward with a Supreme Court confirmation but they let unemployment insurance expire for people that lost their job due to the pandemic and refuse to pass legislation to help small businesses, essential workers, and fund COVID vaccine research. They are more focused on playing politics than keeping Americans safe.

There has been some concern that the court fight will distract from the issues that have worked for Democrats thus far in the election. That is a false choice. The best messengers are able use unexpected events to buttress their chosen narrative. The polling shows this court fight is an opportunity to do just that.

Keep the Fight Big

Whether Trump nominates actual Judges Amy Coney Barrett and Barbara Lagoa or fake Judge Jeanine Pirro is ultimately beside the point. We know this, because the Republicans have basically committed to the filling the Ginsburg seat without knowing who will fill the Ginsburg seat. Democrats should do their due diligence on the nominee and raise questions about their record. They should use previous rulings, statements, and law review articles to buttress their opposition, but the argument is about the policy impact not the person. Trump and McConnell want this fight to be about this specific person as opposed to the broader principle of rigging the court to put in place their unpopular agenda. We need to keep driving home the larger policy implications at stake.

Trump is a Weak Loser, Not a “Strongman”

The Republicans are planning to push through this nomination as a show of brute political force to reinforce Trump’s strength and Democratic weakness. This has been the central goal of Republicans since Trump came on the scene with his tinpot dictator act. Too often Democrats fall into this trap by bemoaning his strength and authoritarian instincts. There is plenty of polling and political science research that shows that some voters gravitate towards “strongman” figures. When talking about the Supreme Court, we need to highlight that Trump is operating from a position of weakness.

The Republicans are rushing this Supreme Court confirmation because they know Trump is losing the election and a majority of the country opposes their agenda.

A lot of Democrats are concerned that Trump is putting a loyal justice on the court for the explicit purpose of helping him win a contested election. A lot of Democrats are concerned about it, because Trump said that this was his plan at a rally/super-spreader event within a few days of Ginsburg’s death. This is alarming and the lack of outrage about it from the media is mind-boggling, but Democrats need to be careful about how we talk about it.

Trump has a massive strategic incentive to convince voters that their votes won’t matter. He has failed to persuade voters to move to him, so his best path to winning is to diminish turnout among Democrats. Winking and nodding at the fix being in is a classic authoritarian trick to sow cynicism among the electorate. If people have reason to believe their vote won’t count, they are less likely to undergo the inconvenience and take the COVID risk of voting. Once again, it is critical to frame Trump’s attempt to rig the court as unlikely to work if we all turn out to vote and more evidence of his weakness and unpopularity.

Expansion is about Balance not Retaliation

I have written a lot recently about adding justices to the court. I thought it was a good idea before this vacancy and now I believe it is absolutely necessary. Everything that progressives care about depends on unrigging the court. Court expansion went from a niche issue to a major topic of discussion in the last few days. A lot of Democrats are very concerned about the politics of expansion. I will make two more points about expansion and then shut up (for a few days at least). First, the politics of expansion are better than most think. The Data for Progress poll found that voters were split 40-39 on the question of adding justices to the Supreme Court. This is a very encouraging finding considering that the issue was just introduced to most of the public a few days ago. Second, how we talk about expansion matters a lot. Do not call it “packing.” The phrase elicits memories of Franklin Roosevelt’s notorious failure to add Justices nearly a century ago. “Expansion” is a fine word. “Reform” is a better word. It is also critical that talk about expansion/reform be framed as restoring balance to the court as opposed to retaliation for McConnell’s misdeeds. An eye for an eye is not a persuasive message.

It’s worth noting that if McConnell succeeds in filling Ginsburg’s seat five of the nine justices will have been put on the court by Presidents that received fewer votes than their opponents. This court supports positions — like repealing the ACA, overturning Roe v. Wade, and upholding Citizens United — that are opposed by large bipartisan, majorities of Americans. Court expansion is an effort to bring the court back into the American mainstream.

Based on polling and experience, this is my best guidance for the fight to come. There have been some other interesting ideas including this plan from former Senate Leadership Aide Adam Jentelson. We didn’t choose this fight. It was chosen for us. And there is no avoiding it. How the politics play out is not written in stone. We decide whether this is a boost for Trump or the death knell for his shitty, corrupt presidency. The decisions that we make, the messages we communicate, and the work we do from Joe Biden down to the volunteers working the phones will determine how this plays out.