Supreme Court Justice Anthony Kennedy’s decision to retire four months before the election is the best thing that could have happened to Republicans, conventional wisdom says. It is difficult to disagree with that logic, but it is also necessary to keep in mind the counterargument – which is that enthusiasm cuts both ways. (To be fair, the more adequate word for Democrats still reeling from the announcement isn’t enthusiasm, but fear.)
Historically, Republican voters have been more motivated to go to the polls because of the issue of judicial nominations than Democrats. Exit polls from the 2016 election confirm this view. According to CNN, 56 percent of Trump voters said Supreme Court appointments were the most important factor in their decision. Evidence strongly suggests that filling Supreme Court vacancies was a big reason for Donald Trump’s win. Though the stakes for filling any court vacancy are always high, they aren’t as high or urgent from the Republican perspective this time around. Why? Two years ago, the presidency was up for grabs and, with it, the next two or more court vacancies, including the seat held by Scalia which could have altered the court’s majority if Hillary Clinton had won. Now, Donald Trump is in the middle of his first term, with a Republican-controlled Senate. It may gin up enthusiasm among some Republican voters, but it doesn’t have the same existential sense of urgency that Democrats are now feeling.
“Misery motivates, not utopia,” Karl Marx once wrote. That principle, combined with lingering anger over the Senate Republican blockade of Merrick Garland and the recent string of losses in Supreme Court decisions during the week leading up to the Kennedy retirement, strongly suggest that Democratic candidates and their allies aren’t going to treat this Supreme Court vacancy like any other opening in the past.
State Democratic parties and candidates are fundraising off the Kennedy retirement, some on the specific message of running as a defender of abortion rights. Others have spoken more generally about the urgency of electing Democratic governors and legislators to have as a check on any sweeping future rulings from the Supreme Court on issues like abortion, voting rights, gun control, campaign finance, or redistricting. However, the initial messaging from Democrats and various interest groups on the actual Supreme Court vacancy itself is all over the map, depending on who you ask. Their options to block a nominee are nonexistent after Senate Republicans abolished the filibuster for Supreme Court nominees for the Neil Gorsuch vote. Their only chance at blocking a nominee is the slim chance that minority leader Charles Schumer can hold all 49 Democrats and is somehow able to get two Republicans to join them in voting against.
Just as there will be enormous pressure on a handful of red state Democrats who are running for reelection this cycle (specifically Heidi Heitkamp, Joe Manchin and Joe Donnelly, who voted to confirm Neil Gorsuch last year), there will also be enormous pressure on Senators Susan Collins and Lisa Murkowski, who are the only pro-choice Republicans in their party’s Senate caucus. Collins and Murkowski have the benefit of not running for reelection in this hyperpartisan political environment, but that doesn’t mean they won’t be feeling pressure. As Republican pro-choice women in the Senate who have a vote in judicial nominations, do they want their legacies to be defined by potentially casting the deciding vote to seat a Supreme Court justice who might one day vote to overturn Roe v. Wade?
It is also necessary to look beyond Murkowski and Collins for potential pressure points. Even though they aren’t on the ballot this year, the governors of Alaska and Maine are, as is Maine’s independent senator Angus King, who caucuses with the Democrats. Voters in both states won’t be able to vote against Murkowski or Collins in this cycle, so they may opt to flex their political muscles by voting for (or against) the candidates who are on the ballot in November.
While Senate Democrats have a terrible electoral map to defend this year, when it comes to governors and state legislatures, the map becomes almost the inverse, meaning that they will have ample pickup opportunities in down ballot races. Democrats have shown more interest and energy in down ballot state legislative races in the first eighteen months of the Trump presidency, and have already demonstrated some success in special elections – the DLCC has flipped 44 Republican-held seats to the Democrats, in addition to a Wisconsin state supreme court seat, a U.S. Senate seat in Alabama, and stunning off-year results up and down the ballot in Virginia. If Democrats can harness this anxiety about the court and turn it into votes in November, that could drive them to some surprise victories.
Democrats might not be able to stop Donald Trump’s next Supreme Court nominee, but they can put themselves in a better political position for the second half of his term: retaking the House or Senate will give them subpoena power and the ability to launch investigations, as well as control of nominations to the upper chamber; control of governor’s mansions, state offices and state legislatures will give them control of state voting rights as well as drawing the congressional maps for the next round of redistricting after 2020.
As painful as losing cases at the Supreme Court will be, the Democrats’ best hope for now is that they can use the court as an issue to play the long game: rebuild their bench in state and federal offices, gain congressional majorities, and eventually win the presidency.
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