Within minutes of the announcement of Justice Ruth Bader Ginsburg’s death Friday, Republicans went to work to push her replacement through the confirmation process as quickly as possible. Senate Majority Leader Mitch McConnell, R-Ky., said he planned to follow through on a floor vote for Ginsburg’s successor, to be nominated by President Donald Trump. The president himself pressed Senate Republicans to confirm his choice “without delay.”
Leaving a Supreme Court seat in the balance could push the turnout higher for Trump’s base, which is of crucial importance to the president’s campaign because he’s never cracked 50 percent.
Putting aside the unseemly dispatch with which the passing of a remarkable historic figure became a sideshow for political gamesmanship — as well as the rank hypocrisy of McConnell’s blessing a vote on Ginsburg’s successor just weeks ahead of a presidential election even though he blocked President Barack Obama from filling Justice Antonin Scalia’s seat nearly nine months before the 2016 vote — the GOP’s ramming through a new justice has more than bad optics arguing against it from a political perspective: Republicans are throwing away their best strategy to retain the White House.
At first blush, it’s understandable that Trump and his White House advisers would race forward with a vote. There are enough Senate Republican votes to confirm the nominee, whom Trump is set to announce Saturday. And political pros know it’s best to move forward when your side has the momentum — and the votes locked up.
But Trump’s team is hoping that this generates enthusiasm for the Republican ticket — and vulnerable GOP senators like South Carolina’s Lindsey Graham, the chairman of the Judiciary Committee, who is charged with holding the initial vote on the nominee — to give him even more momentum heading to the polls Nov. 3. And that’s where they could well be wrong.
Naming a popular conservative pick for the court but scheduling a vote after Election Day would keep alive one of the biggest political motivators for Republican voters at a time when Trump will need every possible supporter to head to the polls for his sake and that of the Senate’s Republican majority. Republicans of all stripes have long been united in the primacy they place on the makeup of the federal judiciary, to the extent that the Republican National Convention in August made the courts a key feature, while Democrats largely ignored the issue.
Leaving a Supreme Court seat in the balance could push the turnout higher for Trump’s base, which is of crucial importance to the president’s campaign, because he’s never cracked 50 percent national approval in the polls. In fact, that’s what Trump’s re-election strategy against Democratic nominee Joe Biden is all about — because he has done little to nothing over nearly four years in the White House to broaden his coalition beyond those inclined to vote for him in the first place.
And some of those voters have been abandoning him of late. While Trump enjoys extremely strong support among Republicans, it’s not monolithic. There are longtime Republican voters who have drifted away from the GOP as he’s trampled party principles such as free trade and reduced federal spending while shattering institutional norms and making more than 20,000 false or misleading claims while in office.
Holding off on a nomination vote could even keep severe Trump doubters in line ahead of Election Day, and it would resonate with all sectors of the Republican coalition. After all, the Supreme Court is one of the last pieces of political connective tissue between different strands of Republicans and conservatives, from hard-core supporters of the president to never-Trumpers.
While conservatives and Republicans have their differences over issues, they’re largely united in the belief that the courts are one institution they can control, compared to rampant liberalism in academia, entertainment and popular culture. Plus, federal judges serve for life, giving these appointments influence long after Trump, McConnell and other current officeholders are gone from the scene.
“Nothing unites Republicans faster than getting Justices on the Court that will defend our Constitution,” tweeted Rep. Jim Banks, R-Ind., who is eager to see Ginsburg’s seat filled quickly.
In addition, confirming Trump’s Supreme Court pick before the election brings considerable risk. Part of it is the very act of bringing a vote at all. Democrats, particularly base voters who pay close attention to such things, are enraged by the notion of a Senate confirmation before the election. They are still smarting from Senate Republicans’ refusal to consider Obama’s Supreme Court choice, Merrick Garland. Senate Republicans said the February 2016 opening, triggered by Scalia’s unexpected death, was too close to the November election. Led by McConnell, they’ve brazenly reversed their position now that a president of their own party is in the White House.
Holding a vote now would likely incentivize Democrats not only to vote themselves but also to rally others for Biden. While a rational calculation might dictate that a filled court position would also disincentivize Democratic voters, that discounts the outrage factor.
Republican voters, meanwhile, already have gotten one of the main things they wanted from Trump, a conservative bench, which would be topped by a 6-3 Supreme Court majority of jurists appointed by GOP presidents.
Then, there are the issues likely to take center stage at the confirmation hearings: the future of the Affordable Care Act and abortion. Pre-Election Day confirmation hearings could bring unwanted attention to Republican stances on these issues, including a lawsuit over whether the ACA, which provides millions of Americans with health insurance, can continue to be enforced. The Supreme Court is set to hear the case just after Election Day.
There’s a reason Republican candidates have largely stopped criticizing Obamacare, which dominated their rhetoric for a decade. Trump didn’t mention it at all in his acceptance speech at the RNC in August, a stark departure from his emphasis four years ago.
Polling by the Kaiser Family Foundation found that in July 2014, 55 percent of voters opposed the Affordable Care Act, while 36 percent favored it. But in July 2020, public opinion about Obamacare had reversed, with 51 percent favoring it and 38 percent opposing it.
Public attitudes toward abortion also don’t help Republicans. Though views on the practice are mixed, support for the Supreme Court precedents on the controversial topic is solid. While a Gallup 2020 Values and Beliefs poll conducted in May found that 48 percent of Americans called themselves “pro-choice” and 46 percent said they were “pro-life,” a 2019 NPR, PBS NewsHour and Marist poll found that three-quarters of Americans want Roe v. Wade to stay in place, even as a majority want restrictions on abortion rights. That suggests that increased electoral enthusiasm for Trump generated by his Supreme Court nominee would be more than offset by opposition from abortion rights supporters.
Beyond specific legal issues, Democrats are now more animated about the composition of the Supreme Court than in previous election cycles. According to a Marquette Law School poll completed three days before Ginsburg’s death, 59 percent of Biden voters said the Supreme Court is “very important” in their decisions about presidential candidates. That compares to 51 percent of Trump voters who said the same. Fifty-six percent of Democrats said the next Supreme Court appointment is “very important,” while just 48 percent of Republicans said the same.
That all adds up to reasons for caution as McConnell ponders when to schedule a vote on Trump’s nominee, which he has so far declined to set. He seems to be more realistic about the political challenges than does the Trump team — or more willing to admit that Trump needs the electoral help.