There is no question that the retirement of Justice Anthony Kennedy is one of the biggest political stories of 2018, and it will duel for attention with the fall midterms. It is a little less clear how the two big stories will intersect.
Democrats are calling on the White House and Mitch McConnell to delay the confirmation of a new justice until after the midterms, citing the rhetoric McConnell used in 2016 to deny Obama nominee Merrick Garland a timely vote:
If Republicans bent to this logic, the midterms would become, in part, a referendum on the Supreme Court, probably to an unprecedented extent given the gravity of this particular appointment. But so far they have shown zero interest in any sort of delay in getting a second Trump justice onto the bench, with McConnell planning confirmation hearings in August and a Senate debate and vote as soon as possible thereafter.
So if a new justice is in fact confirmed in September or October, will the saga actually affect voting in November?
Nate Silver addressed that question today, and found no clear answer. He stipulates that any development that equally stimulates the two parties’ bases could on balance help the GOP:
If the midterm elections look more like the special elections we’ve had so far this cycle, in which Democratic turnout significantly outpaced Republican turnout, the GOP is very likely to lose the House and the Democratic wave could reach epic proportions. But without that enthusiasm gap, control of the House looks like more of a toss-up, at least based on the current generic ballot average.
Since on balance Republican voters have shown more concern about SCOTUS than Democrats (as reflected in 2016 exit polls), a national obsession over the topic might goose GOP turnout disproportionately. But if the confirmation fight is all over by the time voters vote, will it still matter?
[A]ssuming Trump has his choice confirmed by the Senate before the midterms, the Supreme Court will arguably be more of a backward-looking issue in 2018 than it was in 2016. I say “arguably” because Kennedy probably won’t be the last justice to retire under Trump; liberals Ginsburg and Breyer are retirement risks, as is conservative Clarence Thomas. Still, in 2016, voters were deciding on an open Supreme Court seat and not just the prospect of further vacancies.
While it’s uncertain how much the SCOTUS fight will affect the midterms, the midterms could most definitely affect the SCOTUS fight. The last thing the large group of Democratic senators running in pro-Trump states need right now is a vote that could either infuriate the GOP’s right-to-life base or discourage anti-Trump Democratic voters. Three of them who are especially vulnerable — Joe Donnelly, Heidi Heitkamp, and Joe Manchin — voted for Neil Gorsuch’s confirmation.
At this point, the strategy for McConnell & Co. is pretty obvious: Proceed with the confirmation process as quickly as possible (The Hill noted today that confirmation of the last four justices took between 66 and 87 days), preserving the option, if the final vote looks dicey and/or something newly controversial about the nominee pops up, of pushing the whole thing into next year and then making the midterms a referendum on abortion and other constitutional issues for real. Even in the current environment, the Senate landscape gives Republicans a reasonable chance of adding to their slim margin in the upper chamber, as evidenced by this startling datum:
It’s all a high-stakes poker game at this point, but if the SCOTUS confirmation fight reaches its potential decibel level, it’s possible ears will still be ringing when early voting begins in October.