The Sweep: Yep, This Changes Everything

How RBG's death could shake up the Senate, and how the Trump administration might be weighing its options.

After weeks of telling you that very little affects the fundamentals of a presidential campaign—not conventions and rarely debates and never an August news cycle—the opening of a Supreme Court seat that had been appointed by Democrats is arguably a bigger deal than the Comey October surprise was in 2016.

Campaign-ish Quick Hits

Everyone sucks: For all the Republicans who said that it would be crazy to fill a Supreme Court seat in an election year and all the Democrats who said it was a constitutional imperative not to leave a Supreme Court seat open, let me introduce you to your chickens. They’ve come home to roost. And to all the conservatives out there who now admit it was always about constitutional authority and power, just remember this from Matthew Yglesias: “if Democrats win a majority in 2021 and use it to: End the filibuster, Adopt DC/PR statehood, Ban partisan gerrymandering, Create a 17-justice court with 17-year term limits, Expand lower courts on pace with population growth, Them’s also the rules!” Then again, Josh Holmes may have put it best: “Why would a Republican be the least bit concerned with the threat of something they've already said they're going to do? ... They shot the hostage before the standoff.”

What happens if: A lot of conjecture out there on the “what ifs.” Let’s try to break it down a little. 

The Supreme Court currently has eight members, which is not all that unusual. Remember, the court was 5-4 with Republican appointees before last week, so it is 5-3 now. If an election-related lawsuit were to go to the court in December without a newly confirmed justice and the court actually split 4-4, the rule is that the lower court’s opinion stays in place (i.e., the ruling on the field stands unless a majority of the refs disagree). This is highly unlikely for the very reason that the justices are well aware of what would happen. And remember, Bush v. Gore was actually 7-2 on the constitutional problems (and 5-4 on what to do about it). 

As for the pending Obamacare case that I’m suddenly reading so much about, it was highly unlikely that the case would have been resolved before January regardless (and more likely February or March). Now, the justices could hold over the case for reargument after the new justice is seated. But even if, for some unknown and highly improbable reason, the eight justices decided to make the all-but-unprecedented move of releasing an opinion that quickly, as we’ve have discussed several times on Advisory Opinions , there is every reason to believe the mandate would be held unconstitutional by five of the current justices on the court and that the mandate would be “severed” from the rest of the law—meaning the rest of the law would stay in place—by at least five if not six or seven justices on the court. And so the ninth justice will make no difference to the outcome.

Another incorrect take I’ve seen online is that the court would be involved in resolving a 269-269 Electoral College split. The 12th Amendment to the Constitution says that a tie is resolved by state delegations in the House of Representatives in which, for example, all the members from Texas would get one vote. This is also unlikely just from a math/probability perspective, but … #2020.

Losing my majority: If the Senate has not confirmed a new justice by November 30, things get one vote tricker for McConnell. Democrat Mark Kelly is currently running 6 to 8 points ahead of Martha McSally for the Arizona Senate seat. But this is a special election to fill the remainder of Sen. John McCain’s term, which means the winner could be seated as early as December 1. And if a Democrat wins that seat, the Republican majority would go from 53 to 52 votes with Vice President Mike Pence as the tie-breaker until new senators are sworn in on January 3, 2021.

Ignore polls like these: A new Marquette University Law School poll found “that 59% of Biden voters say that appointing the next Supreme Court justice is very important to their vote” compared to “only 51% of Trump voters.” And a CNN/SSRS poll found that “78% of Biden backers told pollsters that nominating the next justice was extremely or very important to their vote” compared to “64% of Trump supporters.” Or this Morning Consult poll, which found that “48% of Democrats deem the Supreme Court a ‘very important’ issue in this year’s election, down 9 points since the beginning of August.” Why ignore them? Because they were taken before Friday. And that makes them meaningless since both sides will spend millions of dollars and moles of oxygen molecules over the next 40 days to rev up their side.

And maybe these too: I discussed the “likely voter” problem for pollsters with Kristen Soltis Anderson this week for the Mop-Up. But some folks like to use polling on enthusiasm as a gauge as well. Not so fast! There’s this little nugget from Democratic pollster Mark Mellman: “In one race, we found among those ‘very’ enthusiastic, 88 percent voted; among those who were ‘somewhat’ enthusiastic, 83 percent turned out; and among those ‘not too’ enthusiastic, a slightly larger 85 percent turned out. No relationship.” He says Gallup had similar findings. Perhaps we can take those enthusiasm polls with a healthy dash of salt from now on. 

Just more proof that issue polls are the tail wagging the dog: Cato senior fellow Johan Norberg has a new book out that includes this cynicism-inducing tidbit: “82% of Democrats and 16% of Republicans support single-payer healthcare when told that Obama supports it. When instead told that Trump supports it, Dem support drop to 46% and Rep support increase to 44%.” So when you see headlines like this, “White suburbanites who feel ‘very safe’ in their communities are more likely to favor Joe Biden,” that’s not because people who feel safer are more likely to vote for Biden, it’s because people who are going to vote for Joe Biden are more likely to say they feel safer. 

But see, abortion: Not unrelated to our conversation about the future of the Supreme Court, there does appear to be one issue in which the issue itself animates voters outside of their candidate preferences: abortion. 

Tim Alberta at Politico once again brought us conversations from the field last week—this time from Cedarburg, Wisconsin, in one of the still-red WOW counties (Waukesha, Ozaukee, Washington) that makes up suburban Milwaukee. As one voter put it, “I feel much worse about him now, but … the abortion issue, the conservative judges … I’m voting for those things. I’m not voting for Donald Trump.” Or this voter, “The abortion issue is a big problem for me.” Or this one, “The Democrats are so far to the left on abortion now that it’s impossible to vote for them.” And this one, “Honestly, I’m pretty close to a one-issue voter. Abortion is the thing I care about most.” For almost every person Tim spoke to, the issue came up immediately. They don’t like Trump, but this sentiment kept repeating: “I disagree with Democrats on a fundamental issue: abortion. And it’s hard for me to get over that. How can you advocate for social justice but approve of killing unborn babies? It makes no sense to me. So, what am I supposed to do?”

Danielle Kurtzleben at NPR wrote up some of the data last week too. On the one hand, she notes that “less than 0.5% of Americans told Gallup that they consider abortion the most important problem in America.” And yet. “Fully 40% of voters see abortion as ‘very important’ to their vote,” which still isn’t actually that high compared to issues like the economy, health care, immigration, etc. But here’s the thing you always have to ask yourself about polling like that: Sure, these voters think climate change or limiting gun rights is important, but do they vote on that issue alone? Rarely. But, according to Gallup, “30% of those in the pro-life camp and 19% in the pro-choice camp say they are single-issue voters when it comes to abortion,” meaning they will only vote for a candidate who shares their views on the issue. And that number has gone up 15 points—doubled—among pro-life voters since 2008.

This is one major reason why Republicans tend to be more reliable “court voters” than Democrats when the pressure is on.

Ok, But What About the Senate?

Andrew coming in hot with how a Supreme Court opening is going to shake up the Senate map ...

Two years ago, another Supreme Court appointment fight was in the middle of scrambling a campaign season. Allegations of sexual misconduct against nominee Brett Kavanaugh, and the days of wrenching testimony that followed as the Senate tried to get to the bottom of them, turned the process into the most explosive confirmation fight in a generation. When voters went to the polls that November, that fight was still fresh in their minds.

To win re-election as a member of a state’s minority party, a senator usually has to be able to brand himself or herself as a common-sense pragmatist who doesn’t take marching orders from party leaders. But you know what makes that kind of branding difficult to maintain? A high-profile, party-line SCOTUS confirmation with deep ideological stakes. In legislative fights, would-be moderates can at least push for amendments to cast themselves as somewhere in the reasonable middle. No such luck with confirmations: You’re up or you’re down.

So when the dust settled in 2018, who were the biggest electoral losers from the Kavanaugh fight? Purple-state Democratic incumbents. In Missouri, incumbent Sen. Claire McCaskill spent the summer in a dead polling heat with upstart challenger Josh Hawley. But Hawley spent the fall hitting her mercilessly on the Kavanaugh issue, while McCaskill tried in vain to find some new ground to re-establish her bipartisan bona fides—ads targeting rural voters that insisted she wasn’t “one of those crazy Democrats” did little besides angering her own base. In the end, McCaskill lost by nearly six points.

Two states away in Indiana, incumbent Democrat Joe Donnelly tried to find a way to thread the rhetorical needle on Kavanaugh: “I believe the process was unfair to everyone and unnecessarily divided the country,” he said in a statement after his (no) vote. “Now that the Senate has confirmed Brett Kavanaugh, I am very hopeful for his success and for him to join the other justices to make decisions based on the Constitution, our laws, and their collective wisdom.” He also tried to draw attention to his previous vote in support of Trump’s first SCOTUS nominee, Neil Gorsuch. No luck: Despite looking strong in the polls all summer, he too lost by six.

The biggest collapse came in North Dakota. Although President Trump had carried the state by a whopping 36 points two years prior, Sen. Heidi Heitkamp’s chances of winning re-election didn’t seem too bad going into the year: She had a strong reputation for aisle-crossing, particularly on her signature issue of agriculture, where she would sometimes break with her party on legislation that pitted farm interests against environmental ones. Going into the Kavanaugh cycle, polls had her down four points. In the end, she lost by 11. 

Note that this is not inherently a Democratic problem, but a simple exposure problem. Any given Congress will have a few senators who “shouldn’t” be there based on the ideological composition of their state, but who made their way into office based on some set of unusual circumstances. An explosive, polarizing event that sends voters running to their corners like the Kavanaugh confirmation simply plays to the detriment of whichever party happens to have more of those edge-case senators up for reelection at the moment. 

Two years ago, that was the Democrats. As we’ve written before, however, this year it’s Republicans who are defending the lion’s share of the swing seats. 

Of the seven Republican senators who are considered vulnerable this fall, only Susan Collins has partially broken with the president’s plan to confirm a third justice before the end of his first term. You can note the same moderate-aspirational tone in her statement as in those of the Democrats discussed above: “President Trump has the constitutional authority to make a nomination to fill the Supreme Court vacancy, and I would have no objection to the Senate Judiciary Committee’s beginning the process of reviewing his nominee’s credentials. Given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election.” 

As “Oh God let me out of this binary choice” swing-vote statements go, Collins’s is masterful: A nod to the left, a nod to the right, and a careful withholding of her actual plans. (Note that “I do not believe that the Senate should vote” is a world away from “And thus I will vote against President Trump’s nominee.”) But that sort of thing can only get a senator so far. Eventually, it’ll be time to vote. 

For the others, there’s been substantially less worry. Here’s an unequivocal statement from Martha McSally, potentially the GOP’s most vulnerable senator this year: “The U.S. Senate should vote on President Trump’s next nominee for the U.S. Supreme Court.” 

The Strategery

We’ve got dueling “this is why this helps us” narratives coming out of the two campaigns in Axios SUNDAY night. From Team Biden: “Biden advisers view the court vacancy as a rare last-minute chance to get a second look from independents.” From Team Trump: “They think they can demoralize Democrats, and depress turnout, if they quickly fill RBG's seat.” 

Time to think about how the Trump campaign (for legal analysis, come on over to Advisory Opinions later today) is thinking about their various plays right now:

  1. Make a nomination and vote before Nov 3. This certainly appears to be the preferred strategy. But I wonder whether the president appreciates that his incentives may not align quite perfectly with McConnell’s or even some of the lawyers advising him. 

    The Trump campaign’s first priority is to win re-election. The conservative legal movement wants to move the court. McConnell, of course, wants to keep the Senate, but even more important than that, is his legacy, which is based on his “one true credo: Leave no judicial vacancy behind.” That is all to say: The president is getting a lot of advice that he needs to get a nominee confirmed to the court asap. 

    And there’s plenty to recommend this path on its merits too. After all, it’s another promise delivered that Trump can point to for the remainder of the race. Sure, it could energize the left, but Trump’s base is also energized when he enrages them and filling the Ginsburg seat with a pro-life woman may be the ultimate “own the libs” move. 

    His brand is not to blink in the face of threats and doomsday predictions. The more the left says they will “burn it down” in response to his actions, the more he has to do it just to maintain that brand. Plus if he were to lose re-election and the nomination stalled for some reason (see, eg, Arizona senate seat in the quick hits), it may well be considered the biggest failure of his presidency by his voters.

  2. Make a nomination but don’t vote before Nov 3. This is the strategic play in which the Trump campaign breaks with pretty much everyone else, which would undoubtedly leak and they’d have to take that into consideration. And like that Dallas on-side kick yesterday afternoon, it’s unlikely to work buuuuut …

    If there’s one thing we’ve seen in focus groups and interviews, it’s that there are a lot of Trump-leaning voters in these swing states who don’t actually like him very much and could stay home or vote third party without some additional motivation. But they like the Supreme Court more than they dislike him. If the court is already 6-3 on Election Day, does that make them like Trump more or make them think the election is less important? Or if the Democrats keep making wild-eyed (and potentially destabilizing) promises to pack the court while the nomination is pending, does that make these voters scared enough to show up?

    So why not make the implicit threat: Vote for me or you lose your precious seat. Or to put it in campaign-speak: “go vote because everything is on the line.”

  3. Don’t make a nomination until after election. The only reason this would make sense politically for this president is if the campaign had some internal poll numbers that showed that a nominee (let alone a confirmed justice) would do more to turn out Biden voters than Trump voters. But even if the campaign had those numbers, I wouldn’t trust them enough to guide my decision. Forty days is a long time to tread water. This will still be in the news every day, and it’s impossible to game out exactly how this curling stone will turn over that amount of time. 

    Sure, for a different president, there could be some argument around an ad campaign that focused on statesmanship and being the president “for all Americans” who is unwilling to let the radical left undermine such an important institution just to help him win an election.

    But that ain’t this guy and no amount of rebranding is gonna change that this late in the game.

  4. Pick Judge Barbara Lagoa from Florida over Judge Amy Coney Barrett from Indiana. As I said on Advisory Opinions last week, Trump’s release of a new SCOTUS list was politically all upside—mainly lots of easy headlines to remind wobbly Republicans of what’s at stake. 

    But was there another reason? I told David that it also seemed likely to me that this was a sneaky way to add Barbara Lagoa to the actual “shortlist” without raising eyebrows. I’ll leave the legal case for AO listeners, but the political case is obvious: Lagoa is Cuban and from Florida. 

    I can’t imagine there are many run-of-the-mill Florida voters who even know who Lagoa is (yet)—let alone feel some sort of personal affiliation with her as a result of their shared location—but that’s reality. The better question is whether Trump or campaign manager Bill Stepien think so. And at a time when Trump has been creeping into Biden’s lead with Hispanic voters in Florida, there’s a real argument that she could add momentum there simply by virtue of adding attention to those numbers.

    On the other hand, ACB is a known quantity with conservative court voters around the country. When’s the last time a conservative judge had her own swag? And that’s before she’s even nominated. She crushed her nomination hearing when she was appointed to the Court of Appeals for the 7th Circuit, winning that coveted Joe Manchin (D-West Virginia) vote (and Joe Donnelly and Tim Kaine to boot) and embarrassing California Senator Dianne Feinstein. She has seven children and a whole lot of pro-life, Catholic voters rooting for her. 

    Politically speaking (and remember we’re only talking campaign strategy here), I think the edge goes to ACB, but it’s a close call and I’d want to see the campaign’s internal numbers in Florida before I made a final call.

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