Monday, September 21, 2020 : By James Black
A political earthquake has once again rocked Capitol Hill and the nation over the weekend, as the country mourns the loss of Associate Justice of the Supreme Court, Ruth Bader Ginsburg, who passed away due to complications caused by pancreatic cancer on Friday, September 18th, 2020. While millions of conservatives and conservative leaning independents opposed Ginsburg’s rulings, she effectively modeled how people from different ideological backgrounds could work together through her iconic friendship with former Supreme Court Justice Antonin Scalia, who also passed away in early 2016. The unexpected timing of this event is another politically incendiary development in a year that has also seen disruptions to life due to the COVID – 19 pandemic, and is occurring less than two months before an election that will highly energize Americans across the country, now even more so due to the vacancy on the supreme court that now exists due to Ginsburg’s passing.
Election analysts have argued that the Supreme Court advantage may prove advantageous to Democrats, given the substantial amount raised by Progressive organizations like ActBlue, which funnel contributions to Democratic campaigns and progressive causes. However, if we analyze historical trends and their potential impact on the present, this may be a premature conclusion. When Senate Majority Leader Mitch McConnell announced the GOP controlled senate would not hold a vote on Merrick Garland, President Obama’s nominee to replace Antonin Scalia, he did so based on the principle that the senate needed to act as a check on President Obama’s desire to shift the court to the left. Preventing a vote on Garland gave then GOP nominee, Donald Trump, an opportunity to publicly share a list of judges from which he would nominate to the Supreme Court if he were elected President. That November, a group of just over 77,000 Americans, split between three critically important states, Wisconsin, Michigan, and Pennsylvania, sent Donald Trump to the White House, in part because they had confidence in who he would appoint to the Supreme Court.
The Supreme Court issue also came into play in the 2018 midterms. Midterm elections historically go against the party occupying the White House, and Mitch McConnell knew there was a strong possibility that the GOP might lose the senate in 2018, despite having a highly favorable map. Having navigated similar situations before and knowing the strategic hand Democrats wanted to play, Mitch McConnell used the nomination fight over Brett Kavanaugh, who President Trump nominated to fill the seat of retired Supreme Court Justice Anthony Kennedy, to make incumbent Democrats up for election that year in red states even more vulnerable. The treatment of, now Supreme Court Justice, Brett Kavanaugh, during his bitter, partisan confirmation fight, enraged conservative voters and prompted them to vote against incumbent Democrats in Indiana, North Dakota, Missouri, and even in Florida, despite incurring narrow losses in Arizona and Nevada. Incidentally, all of the incumbent Senate Democrats who represented Republican leaning states and voted against Kavanaugh’s confirmation, lost their re-election bids. Meanwhile, Joe Manchin, the lone Senate Democrat who voted to confirm Kavanaugh, narrowly won in deeply red West Virginia.
Given how Americans across the country are already highly energized for the upcoming presidential election in November, there are questions as to how the upcoming Supreme Court confirmation fight over Ginsburg’s seat will provide an advantage to either party. However, historical trends point to the possibility that it may help Republicans retain control of the Senate, which would also mean a boost in voters for President Trump’s re-election bid. The Supreme Court fight could help motivate conservative-leaning independents in closely divided North Carolina to support incumbent GOP senator Thom Tillis, as North Carolina’s Senate race may decide whether Republicans or Democrats have control of the U.S. Senate this fall.
In any case, Mitch McConnell and the vast majority of Senate Republicans are unlikely to back down from confirming President Trump’s eventual nominee, especially when Democrats have threatened to introduce legislation that would abolish the filibuster and increase the amount of justices on the Supreme Court. It is very possible that Democrats were already planning on moving forward with these unprecedented actions prior to Ginsburg’s death. Popular conservative radio show host, Ben Shapiro, has suggested, among others, that Democrat threats of ‘packing the Court’ justifies Trump and McConnell moving forward with filling the seat, because threats to radically change institutions, “should not be humored with concessions.”
The radical threat from Democrats to abolish the filibuster and pack the courts with progressive, activist judges, may provide a significant boost to President Trump’s re-election prospects in November, whether Republicans fill the Ginsburg vacancy or not. Trump has statistically struggled during the COVID–19 pandemic, but due to the relative decline in virus cases, better than expected unemployment numbers, and the opportunity to firmly solidify the Supreme Court in the vein of traditional, originalist interpreters of the Constitution, this could weaken the impact of COVID–19 as an election issue by diverting the attention of the American public to the issue of filling Ginsburg’s seat. It is also possible that Biden’s uncertain stance on the issue of packing the Supreme Court could alienate his base and dissuade independent voters who are against packing the court from voting for him. While there is plenty that could happen between late September and Election Day, history is on the side of Republicans filling Ginsburg’s seat, and it may help push them over the finish line on November 3rd.
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