A Supreme Loser for Republicans

Despite conventional wisdom, the politics of the Supreme Court now favor Democrats

When news first broke that Ruth Bader Ginsburg had passed away, the emotional cycle for Democrats went as follows:

  • Sadness at the loss of a true icon;

  • Panic about the substantive consequences of an even more conservative Supreme Court; and

  • An onset of anxiety that a focus on the Supreme Court in the final stretch would boost Donald Trump’s flaccid campaign.

Two weeks, one debate, and a COVID super spreader event later, it’s clear that the coming battle over the Supreme Court confirmation is an opportunity for Democrats to put this election away, defeat Donald Trump, and wrest control of the Senate from Mitch McConnell’s ghoulish claws.

The American People Side with Us

Here’s the good news for Mitch McConnell — a majority of Americans agree with his philosophy when it comes to confirming Supreme Court Justices in an election year. The bad news is that they agree with his words in 2016, not his deeds in 2020.

According to a Washington Post/ABC poll:

38 percent of Americans say the replacement for Justice Ruth Bader Ginsburg, who died last week, should be nominated by Trump and confirmed by the current Senate, while 57 percent say it should be left to the winner of the presidential election and a Senate vote next year.

Partisans are deeply divided on the issue, though clear majorities of political independents (61 percent) and women (64 percent) say the next justice should be chosen by the winner of this fall’s election, including about half of each group who feel this way “strongly.”

Another Washington Post/ABC poll of the critical battleground state of Pennsylvania found that 53 percent of voters prefer that the winner of the election fill the vacancy on the court. Only 43 percent believe Trump should fill the seat. It is clear the American people are not buying the crock of hypocritical bullshit proffered by Trump and McConnell.

It’t not just a question of timing. It’s also one of judgement. Despite a historical advantage for Republicans on the issues of courts, voters prefer Biden over Trump when it comes to choosing a Supreme Court Justice. A New York Time/Siena poll found that Arizona voters trust Biden to choose the Supreme Court Justice over Trump 49 percent to 44 percent.

The short-circuiting of a sexual assault investigation into Brett Kavanaugh after he lied under oath and pledged partisan revenge probably didn’t help the public’s impression of the judgement of Trump and the Senate Republicans.

Finally, it’s not just timing and judgement. It’s also enthusiasm. Typically, the Supreme Court has been a bigger motivator for Republicans than Democrats. But that seems to be changing (finally!). In that Post poll of Pennsylvania, 61 percent of Biden voters said the court vacancy made it more important to elect their candidate compared to only 41 percent of Trump voters. A 20 point spread on an enthusiasm measure is a big deal in an election during a pandemic that creates a number of additional hurdles to participation.

Another Health Care Election

The biggest political consequence of the Supreme Court vacancy is that it once again propels health care to the top of the issue agenda. Republicans know that their rabid desire to overturn the Affordable Care Act and kick millions off their health insurance is political kryptonite. Now, of course, they could abandon that position and work on ways to improve the law, but they are neither smart nor compassionate enough to choose that path. Instead, they have spent nearly every day since their historic electoral thumping in 2018 lying about their position. This is why Trump pretends to have a health care plan and they all lie about protecting people with pre-existing conditions while supporting a lawsuit to overturn the law and winking and nodding at repealing the law if they ever regain control of Congress.

This fight over the Supreme Court vacancy means that health care will be a central issue in the final stretch of the campaign. This is bad news for Republicans. Recent polling from Democratic groups found that the most persuasive messages about the Supreme Court fight focused on health care. The below message moved the race in Biden’s favor and undoubtedly would do the same for Democrats running against the Republican Senators working so hard to kick people off their healthcare:

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.

The Supreme Court is scheduled to hear a case to decide the fate of the ACA right after the election and Republicans are rushing to fill Ginsburg’s seat in order to overturn the law. The idea that Amy Coney Barrett, Trump’s choice for the court, will overturn the ACA is not idle speculation or the reading of tea leaves. In 2017, Coney Barrett wrote that “Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Choosing Coney Barrett with the ACA case looming took a tremendous amount of hubris. We can’t let them get away with it.

In the best of times, a discussion about the possible repeal of the ACA is bad news for Republicans. I don’t know if you have checked the news recently, but these are not the best of times.

Pandemic Political Priorities

Rushing through this nomination looked really bad before, but now that the super spreader event at the White House has infected the Senate the politics could be devastating. Because a number of Republican Senators have contracted COVID, Mitch McConnell has shut down the Senate — stopping work on providing aid for the unemployed, funding for vaccine research, and help for teachers and essential workers. But McConnell isn’t stopping work on the Supreme Court confirmation. That work must proceed at the expense of the American people and putting Senators and their staffs at risk. McConnell’s perverse priorities in the middle of a pandemic is a huge political error for which Democrats can make every Senate Republican pay a price.

The COVID outbreak among Republicans on both ends of Pennsylvania Avenue means that McConnell may not be able to confirm Coney Barrett through the normal course of business. Never one to let rules or norms get in the way of acquiring power, McConnell is contemplating extreme measures to ram through the nomination. Three members of the Senate Judiciary Committee that must approve the nomination have contracted COVID, which means the Republicans may not have a quorum to advance the nomination for a floor vote. According to Jane Mayer of The New Yorker:

Faced with such a roadblock, McConnell might find a way to sidestep the Senate Judiciary Committee entirely. He could file a motion to discharge, and send the nomination directly to the Senate floor. But this would break with both precedent and the Senate’s norms. If the oversight function of the committee of jurisdiction was simply shoved aside when it was deemed inconvenient, during a confirmation of a lifetime appointee to the country’s highest court, it could very well damage the legitimacy of the whole process. It surely would unleash a huge outcry. Short of that, the Republicans on the committee could always try to change the rules. Or, if two Republican members of the Judiciary Committee were too incapacitated to vote in person, McConnell might be able to name replacements.

The primary co-conspirators in McConnell’s efforts will be members of the Judiciary Committee which just happens to include four of the most vulnerable Senate Republicans:

  • Lindsey Graham;

  • Thom Tillis;

  • John Cornyn; and

  • Joni Ernst.

By signing up to rush through this lifetime appointment, these four Senators are at risk of becoming the face of everything voters hate about politicians in general and Republican politicians in particular. This will be a tough political battle, but Democrats should feel confident. They have the political and moral high ground.

I don’t know if we will be able to stop Trump and McConnell from putting a Justice on the court. But we can make sure they pay such a grave political price that even if Coney Barrett strikes down the ACA, a President Biden and a Democratic Senate are able to replace it with something bigger and better.