The Corner

Law & the Courts

Early Thoughts on The Supreme Court and the Midterms

Chief Justice John Roberts (seated, center) leads Justice Ruth Bader Ginsburg (front row, left to right), Justice Anthony Kennedy, Justice Clarence Thomas, Justice Stephen Breyer, Justice Elena Kagan (back row, left to right), Justice Samuel Alito, Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch in taking a new family photo including Gorsuch, their most recent addition, at the Supreme Court building in Washington, D.C., June 1, 2017. (Jonathan Ernst/Reuters)

The Washington Post’s Dave Weigel argues, as he has been doing a lot lately, the case for optimism for Democrats and pessimism for Republicans about the 2018 midterm elections – this time, specifically in the context of the effect of a Supreme Court vacancy on the midterms. There’s nothing wrong with arguing these things from a point of view; I’ve long argued that readers are better suited to arrive at the truth in a lot of areas by an adversarial process of reading and weighing opposing arguments than by searching for the elusive totally objective observer. Election forecasting, especially this early in the cycle, involves a healthy dose of judgment and historical perspective to go with the hard data and shoe-leather reporting, so it can’t be done solely by white-coated laboratory experiments.

Anyway, Weigel’s argument boils down to two main points. While they may be useful cautions about over-reading the impact of the Anthony Kennedy vacancy – I’m not arguing that we are suddenly going to see a Red Wave election – they don’t do much to persuade me that we should see this vacancy as at best a big help for Republicans in reducing the side of the Blue Wave, and at worst something of a draw.

Weigel’s first argument is that 2016 exit polls showing that Republicans cared a lot more about the courts than Democrats at the time should not be assumed to be true this time around. It’s true that Democrats were complacent in 2016 after eight years in power, and Republicans were much more fearful about a hard shift of the balance of the Court to the left if a Democrat appointee replaced Antonin Scalia. So, yes, the 2016 exit polls should not be read to offer Republicans a permanent enthusiasm advantage on the courts. A rightward shift on issues like abortion and gay rights with the departure of Kennedy – including the possibility of a 5-4 majority opposed to Roe v. Wade – puts fear and rage into the hearts of Democratic partisans.

But here is where I part company from Weigel: Democratic base enthusiasm is already through the roof. We have seen that over and over in special elections, and it’s reflected already in many of the polls. But off-year elections are a mix of three elements: motivating voters who are likely to support Democrats, motivating voters who are likely to support Republicans, and persuading voters who are on the fence to support one side or the other (or stay home themselves, as many often do).

So, the baseline against which we measure a Supreme Court fight is one of high levels of rage and focus among Democratic partisans and signs of swing voters leaning in their direction, but questions about Republican enthusiasm. That’s particularly important given that a lot of contested House races and an overwhelming proportion of Senate races this fall will be fought in areas where Republicans won up and down the ticket in 2016. So, Republican enthusiasm can’t just be written off as an irrelevant and outnumbered faction, as it would be in deep-blue territory. It’s actually the biggest variable right now.

And who are the 2016 Republican voters most likely to stay home in 2018? Three groups: the people who were eager to oppose Hillary and/or Obama, but now are complacent themselves; the people who support Republicans generally, but are increasingly troubled by Trump; and the people who believed in Trump but are now disappointed that Republicans in Congress haven’t delivered enough.

How does a Supreme Court fight, with control of abortion and just about every other hot-button social issue potentially on the table, play out with these groups? Again, we’re just operating at the level of informed speculation, but anyone involved in Republican politics could tell you there should be major opportunities with all three. The complacent voters, especially the sorts of conservative Christians who are typically detached from day-to-day politics, are likely to care far more about the Supreme Court than about anything else, even economic or national security issues. There is no hiding the palpable sense of THIS IS THE BIG ONE for people who have voted for Republicans for years on these issues and come up empty. And those voters more than anything are the people most likely to be activated if Trump picks a nominee (like Amy Coney Barrett) who triggers a wave of Christian-bashing from liberal quarters. The same dynamic can be expected to animate Republican-leaning voters who don’t like Trump and are concerned about his many negatives (bad trade policy, unduly harsh immigration policy, issues with his mouth and his ethics) – the “But Gorsuch” argument that at least Republicans can unite around conservative judges will be a powerful temptation to come back home in Senate races. Finally, if Senate Republicans are able to stay united enough to get a nominee through, that will help reassure those voters who see the Congressional caucus, rather than Trump, as the weak link.

Weigel’s second argument is to suggest that having the possibility of Roe v. Wade overturned on the table is something that even Republicans in red states should fear. One piece of evidence he cites is a single poll showing low approval for overturning the decision, but of course abortion polling tends to vary a lot by things like how questions are framed. A lot of voters don’t know much about the ins and outs of how court decisions work, they care about the issue itself. The other is initial caution among many Republican candidates in pressing the vacancy as a chance to relitigate abortion and other divisive issues. But that can be deceiving – the fight hasn’t really started yet, and until there is a nominee and a vote, Republicans will be under a lot of pressure to make reassuring noises for the benefit of wavering Senators like Susan Collins and Lisa Murkowski, rather than the voters.

None of this is to argue that the process is free of risks, especially if the nominee is a disappointing choice, has surprises in his or her record, or handles hearings poorly, or the nominee or someone else says or does something that particularly alienates swing voters. And just because the dynamics favor a boost for Republican enthusiasm doesn’t mean that will be enough to hold off the existing momentum towards a good year for Democrats, especially in the House and in statehouse elections. But from where we stand today, the most important question of 2018 is whether energized Democrats will face dispirited and divided Republicans in the fall. A fight over the courts is just about the best possible thing for Republicans hoping instead that their side will feel its own sense of urgency in November.

Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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