Mortality Shakes Up Our Politics - Rob Horowitz

Mortality Shakes Up Our Politics - Rob Horowitz

I suspect that Ruth Bader Ginsburg, a woman who combined a strong commitment to principle, a pragmatic approach to how to achieve it and a keen sense of humor, would be unsurprised and perhaps a bit amused about the fact that a fierce debate over who should nominate her replacement and when a vote on that nomination should take place broke out just an hour or so after her death on Friday; in the vernacular, before her body was even cold. Clearly anticipating this controversy, the justice herself weighed-in posthumously through a dying wish she dictated to her granddaughter, Clara Spera. “My most fervent wish is that I will not be replaced until a new president is installed,” said Ginsburg. 

Despite the wishful thinking of some Republican strategists, this important development is likely to have its least impact on the Presidential race. It is the case that when you are significantly behind you welcome anything that introduces a new element into the race. And this is likely to create some additional excitement among conservatives, nearly all of which are already voting for the president, but it does not solve his fundamental problem: that the race as with most incumbent presidential re-elections is a referendum on him and a significant majority of Americans disapprove of his overall job performance with a very high percentage of these likely voters strongly disapproving.   

The comparison some are making to the role the Supreme Court played in the 2016 election is overblown. That was an open seat in which Trump was running against an opponent nearly as unpopular as him and the majority of a fairly sizable chunk voters who disliked both candidates were willing to take a chance on him. This sub-set of voters is a smaller percentage of the electorate this time because Joe Biden is more favorably perceived than Hillary Clinton was and due to the fact that people who dislike Trump now have had that view confirmed by his presidential performance, a substantial majority of people who dislike both candidates are going with the Democratic candidate this time.  Additionally, there is now a conservative majority on the Court, so this seat provides a bit less motivation for conservatives than when the balance of power was truly at stake in 2016 with the next president selecting the successor to Justice Scalia. At the same time, the prospect of a 6 to 3 conservative majority on the court overturning Roe v Wade and the Affordable Care Act, provides some additional energy to Democratic turn-out efforts.

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The battle over Justice Ginsburg’s replacement, however, is likely to have a marked impact on some of the competitive US Senate races.  In Maine, for example, where Senator Susan Collins trails her Democratic opponent, she has already seized the political opportunity to appeal to Democrats and Independents, by opposing Senator Majority Leader Mitch McConnell’s move for a vote on a new nominee by the end of Donald Trump’s term, whether he wins or loses. Collins stated that she believes whomever wins the presidential election should pick the next nominee. In competitive races where President Trump won in 2016, some Republican Senate incumbents have already announced that they are for a quick vote, figuring that will be a political net plus.

On what is probably the most important substantive question: whether or not McConnell will succeed even if President Trump loses in November in getting Trump’s nominee through the Senate, I wouldn’t bet against the wily and skillful Majority Leader. 

This is not to suggest this will be easy. Along with Collins and Senator Lisa Murkowski of Alaska, who have already expressed their opposition, there are likely to be several other Republican senators who are fairly uncomfortable moving forward given that the party position in 2016 was that in a presidential election year a Supreme Court nomination should be made by the next president.  As Senator Grassley and McConnell himself wrote in a co-authored Washington Post opinion piece in 2016: “ Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court”  The two senators conclude,  “It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.”

Early public opinion is also against McConnell.  Sixty-two percent of Americans say the court vacancy should be filled by the winner of the presidential election, as opposed to only 23% who say the nomination should proceed now, according to a Reuters-Ipsos poll taken over the weekend.

Still, when President Trump names a nominee at the end of this week, there will be in all likelihood a highly qualified conservative woman jurist who will demonstrate those qualifications to Republicans and conservatives in a televised Senate Judiciary Committee hearing that will also receive saturation level news coverage. Assuming the vote is in the lame-duck session, the choice Republican Senators will face is to reject that nominee with the full knowledge that President Biden will then select a liberal alternative. In that scenario, Collins and Murkowski may not even be sure no votes and it is unclear to me where the next vote or two will come from to block the nomination (Assuming all the Democrats vote against the nomination, there would need to be 4 Republican senators voting against the nominee, unless the vote is held after November 30 and Senator Martha McSally loses the special Senate election in Arizona, then only 3 Republican votes would be required).

I would expect some Republican senators who are troubled by the inconsistency of blocking the Garland nomination in 2016 because it was made at the beginning of an election year and now proceeding with this nomination made within a month or so of the election will make some measured criticism of the process, but then say that it is not a sufficient reason to reject a highly qualified nominee. It will be a lot like those Republican senators who said that Adam Schiff and the Democratic impeachment managers proved their case and that the president’s conduct was wrong, but that it didn’t rise to the level of impeachment. 

 A flesh and blood nominee will outweigh consistency and fair play. The pressure on Republican Senators from their supporters, donors and conservative and evangelical interest groups will likely be nearly irresistible

In sum, I hope I am wrong, but I don’t think Ruth Bader Ginsburg’s "fervent wish" will come true.

 

Rob Horowitz is a strategic and communications consultant who provides general consulting, public relations, direct mail services and polling for national and state issue organizations, various non-profits, businesses, and elected officials and candidates. He is an Adjunct Professor of Political Science at the University of Rhode Island.