You’d think getting a third Federalist Society–vetted Supreme Court nominee in a single presidential term would be enough good fortune for Republicans. But when Justice Ruth Bader Ginsburg died (just over a month ago, incredibly) there was immediate excitement in GOP ranks that a good, vicious confirmation fight for a new conservative justice would be just what the doctor ordered for Republican prospects in November, particularly for an embattled president and his Senate allies. Here’s one of many such prophecies, as reported by the Associated Press:
Four years ago, the allure of conservative Supreme Court appointments helped persuade skeptical Republicans to support Donald Trump for president. Two years ago, a contentious clash over Trump’s choice of Brett Kavanaugh for the court was credited with bolstering GOP gains in the Senate in an otherwise bad midterm election.
And now, just 44 days before Trump’s reelection will be decided, Republicans are again looking to a Supreme Court nomination fight to unite a deeply fractured party as it faces the very real possibility of losing the White House and control of the Senate this fall.
GOP leaders are optimistic they can pull it off. In the turbulent Trump era, nothing has motivated the Republican Party’s disparate factions to come home quite like the prospect of a lifetime appointment to the nation’s highest court.
Here’s another, from the Washington Post at about the same time:
“Trump needs to fire up conservatives for the election. That’s the goal,” said Mike Davis, a Republican consultant who helped lead the Senate confirmation of Justice Brett M. Kavanaugh in 2018. “That is a big deal for conservatives and will motivate them.”
Now before proceeding into an examination of how that’s working out for the GOP, I’ll pause to examine the dubious premise that Mitch McConnell won it all for Trump in 2016 by keeping Merrick Garland far from the Supreme Court, and that in 2018 the Brett Kavanaugh fight produced a big upset victory for Republican senators.
Yes, 2016 exit polls showed that among the 21 percent of voters who claimed Supreme Court appointments were the most important factor in their candidate choice, Trump won by a comfortable but hardly staggering 56-41 margin. And there’s no question that by naming a list of Supreme Court prospects and creating a process for the strict ideological vetting of judicial nominees, Trump built trust with conservatives — especially white Evangelical conservatives — who wound up supporting him overwhelmingly. But it’s really unclear the non-hearings and the non-confirmation of Garland made the shape of the Supreme Court significantly more vital to Trump supporters than a Court with Garland on it might have.
The myth of the Kavanaugh battle saving the Republican Senate in 2018, which is an article of faith for many GOP pols, is even more dubious. Exit polls that year showed voters opposing Kavanaugh’s confirmation by a 47-43 margin, and more impressively, favoring continuation of Roe v. Wade’s constitutional right to choose abortion — by all accounts the driving motivation of conservative SCOTUS mania — by a 66-25 margins. As I pointed out at the time, the real reason Republican held onto the Senate and even made gains was an insanely favorable landscape, with 26 Democratic as opposed to just nine Republican seats at risk:
In the Senate, Republicans picked up two net seats by winning Democratic-held seats in Florida, Indiana, Missouri, and North Dakota [all states carried by Trump in 2016], while losing seats they held in Arizona [ditto] and Nevada …
Democrats won 22 of the 34 Senate races decided so far [ultimately 22 of 35 after a Mississippi runoff]. And while California complicates the Senate popular-vote picture (because its top-two primary system produced a two-Democrat general election for the Senate), by any measure more people voted for Democrats than Republicans in Senate races. FiveThirtyEight calculates that 27 of 33 Democratic candidates (excluding Mississippi and two-Democrats California) over-performed the partisan lean of their states. So it’s a bit strange to treat the Senate shift as a GOP “mandate” on par with what happened in the House.
Even if you do buy the dubious theory that a Supreme Court confirmation war is a guaranteed net base energizer for the GOP, the confirmation hearings of Barrett, which finished last week, were decidedly lacking in drama as compared to the Kavanaugh saga two years ago. The most obvious reason, of course, is that no one has come forward to accuse Barrett of sexual assault, inspiring Me Too activists and generating total fury among conservative men led by those on the Senate Judiciary Committee. The lower temperature is also attributable to the Democratic strategy for coping with her, as I explained earlier:
Barrett’s background has served as both shield and sword for her proponents in a way that Kavanaugh’s did not. Even before President Trump nominated Barrett to the Supreme Court, Republicans cleverly alleged that Democrats would expose anti-Catholic (or even anti-Christian) animus in an examination of her worldview.
Republicans claim, unfairly, that the opposing party already did this during the 2017 hearings that preceded Barrett’s confirmation to the Seventh Circuit, so in recent days Democrats have given her belief system a wide berth.
Instead Democrats have focused on the impact of a more conservative Court on the Affordable Care Act, a regular messaging preoccupation of theirs and not something likely to provoke potential Trump voters to snake-dance to the polls in a state of hate-filled exaltation.
Yes, perhaps getting extra air time chairing the Barrett hearings and defending her on the Senate floor will help lift Lindsey Graham to an unimpressive win over the very impressive Jaime Harrison in South Carolina. But as an all-purpose base-arouser, it’s likely to be overshadowed by the president shouting at suburban women to “please like me!” because he “saved” their neighborhoods from Black and brown and poor people.
Perhaps Democrats unhappy with the handling of the Barrett hearings by Senate Judiciary Committee Democrats should see a silver lining: If you snooze, they lose.