The focus shifts from COVID-19 to a sympathetic female nominee and Democrats’ threats to pack the court and radically alter our constitutional order.
The focus shifts from COVID-19 to a sympathetic female nominee and Democrats’ threats to pack the court and radically alter our constitutional order.
T he tantrum you’re noticing right now is a result of the sudden dramatic change in the dynamics of the 2020 election. The Supreme Court vacancy in the wake of Ruth Bader Ginsburg’s death helps Donald Trump’s reelection campaign. It may not put him over the finish line, but it’s going to help a lot, just as early voting is starting in some states.
The general thrust of the 2020 election was a man-on-man contest between Donald Trump and Joe Biden. That contest favored Joe Biden. He made character and trust almost the entire text of his convention speech. The No. 1 issue of the campaign was the COVID-19 pandemic. That’s why Joe Biden made Trump’s unpopular handling of the crisis the only other issue besides character that he spoke about at his convention.
A Supreme Court vacancy changes the election from a referendum on Trump’s performance in a crisis to a referendum on the future of the Court.
The judicial nomination dramatically expands the aperture of the 2020 election. Instead of Trump the raging Twitter personality versus the Joe Biden who has been around forever, you have a larger choice between the Republican Party, which is doing its duty, and the Democratic Party, which is threatening to alter the constitutional order.
Instead of Joe Biden being front and center, the vetting of a nominee will bring to the fore the Democrats on the Senate Judiciary Committee — above all, Chuck Schumer and Kamala Harris. The vacancy has led several Democrats to promise that “nothing is off the table” if Republicans confirm a nominee, including Democrats packing the court, admitting new states, or killing the legislative filibuster.
Some have argued that the Republican Party should offer a compromise in order to deescalate constitutional questions. The compromise would be that Republicans would vet but not confirm a nominee before the election. If Republicans win, they will confirm, but if Democrats win, Republicans will swear not to confirm during the lame-duck session, and Democrats will promise not to pack the court, add new states, or kill the legislative filibuster.
This argument won’t persuade rank-and-file Republicans. The problem is that filling an open seat is not an act of constitutional or judicial “escalation,” so the trade is lopsided. Filling the judiciary with qualified and conservative nominees is what Republican presidents and Republican senators campaign on. This was a signature issue of the Trump campaign and the signature issue of Mitch McConnell’s leadership in the Senate. In other words, Republicans are in a strong position to argue that they are not only exercising their constitutional prerogatives but following the democratic mandate in doing so.
Democrats don’t campaign as much on judicial nominations. Joe Biden won his primary by campaigning as a moderate, and he proved this by specifically rejecting notions such as packing the court. In July 2019, Biden said (correctly) “We’ll live to rue that day” if the court is expanded. In the end, Republican voters will demand that Republican lawmakers get on with the task they were elected to do. Filling a vacancy is normal. Packing the court is abnormal. Republicans are promising to do what must ultimately be done. Democrats are campaigning on something that will blow up the legitimacy of the court.
All of this helps Trump because it puts a more radicalized Democratic Party in the spotlight and pushes Joe Biden and Donald Trump off the stage.
Further, if Trump picks Amy Coney Barrett, the Democrats on the Judiciary Committee and in the media will be sorely tempted to make her Catholic faith and her seven children (two adopted) into an enormous controversy. This is a very bad move when Joe Biden is trying to win states such as Pennsylvania, Michigan, and Wisconsin that have lots of Catholic swing voters.
Ultimately, the vacancy also helps Trump because the Republican Party is never more unified than during a Supreme Court confirmation battle. The fight to confirm Brett Kavanaugh was more unifying than even the 2016 election itself. George W. Bush did spade work behind the scenes trying to steady the Senate caucus. Many old-guard Republicans who do not particularly like the party of Trump came out and pitched in to help get Brett Kavanaugh over the line. That moment was more unifying than even the cause of defeating Hillary Clinton in 2016.
If polling is to be believed, Donald Trump needs to draw another inside straight to beat Joe Biden in November. The nomination fight may not be enough to stop Joe Biden from winning. But changing the subject of our politics from an assessment of Trump’s handling of the coronavirus to a fight about the Supreme Court helps him. If the campaign focuses on ensuring a Senate majority that will confirm a qualified, sympathetic female nominee, and if it also calls out the radical Democratic Party that is smearing that nominee and threatening to dramatically alter the number of states and justices in response, it will be good for most of the GOP Senate candidates and for Trump.