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The Politics of the Supreme Court Fight
Justice Breyer's retirement kicks off a high stakes battle that will extend far beyond the Senate and the Supreme Court
Thank you Stephen Breyer for your service. And thank you for understanding that failing to retire in this potentially brief window of Democratic control would have been a misjudgment of epic proportions. If the Republicans take the Senate next year, we know from recent and painful experience that the McConnell principle asks Republican Senates to never confirm Democratic nominees to the Supreme Court. Full stop.
Much will be written and discussed about the historic nature of President Biden’s pending nominee to replace Justice Breyer. There will be a thorough examination of her qualifications and what her ascendance to the Court will mean for future cases.
At the risk of sounding pedestrian, I want to discuss the political impact of President Biden’s decision, the pending confirmation battle, and the likely Republican response. With less than 10 months before a high-stakes midterm election, the political implications of a Supreme Court nomination are worth exploring.
Are SCOTUS Nominations Gamechangers?
After the Republicans held onto the Senate in 2018, many (mostly Republican) pundits claimed that the high-profile battle over Brett Kavanaugh’s confirmation buoyed the Republicans. Under this theory, the Democrats erred by challenging Kavanaugh to answer for the credible accusations of sexual assault from Christine Blasey Ford among others. Let’s put aside the morally abhorrent and deeply irresponsible view that Democrats should have ignored these allegations for a lifetime appointment to a job from which Kavanaugh would make countless rulings affecting the health and wellbeing of women. Aside from this, s their political analysis correct? Was the confirmation battle a win for Republicans?
The evidence does not support the GOP spin at all. Sure, Republicans held onto the Senate, but they didn’t win a single race in a state where Hillary Clinton won in 2016 or Joe Biden would win in 2020. Sherrod Brown won Ohio easily and Jon Tester won a close race in very red Montana despite voting against Kavanaugh.
Prior to the election, Nate Silver explored this question using FiveThirtyEight’s model and found that Kavanaugh’s nomination and the ensuing confirmation had a relatively negligible effect on the generic ballot numbers.
35 percent said Kavanaugh's confirmation made them more likely to vote for a Democratic congressional candidate and 27 percent said it made them more likely to vote for a Republican congressional candidate. Another 37 percent said it wouldn't affect their vote.
But just because the Kavanaugh confirmation was not a gamechanger for Trump and the Republicans, doesn’t mean this battle won’t have a political upside for Biden and the Democrats.
Why the Nomination is Likely to Help Biden
Given people’s short memories and the significant structural forces that favor the Republicans in the upcoming elections, I don’t want to overstate the political impact of the Supreme Court confirmation. Democrats need all the help we can get.
First, high-profile fights tend to have a galvanizing effect on parties. While I love to dunk on the dumb #demsindisaray memes as much as the next person, it is fair to say there is some dissatisfaction in our base. According to Gallup, Biden’s approval numbers among Democrats are down 13 points since last summer. When it comes to improving Biden’s approval rating, these Democrats are the lowest hanging fruit. More specifically, Biden’s approval ratings among Black voters have declined precipitously in recent months. According to an NBC News poll, President Biden’s approval among Black voters is 64 percent — down 19 points since last spring. There is no path to success in this election — or any election — without strong support from Black voters. Delivering on a core campaign promise to nominate the first Black woman to serve on the Supreme Court won’t solve all Biden’s problems with Black voters, but it can be a strong opening salvo in winning them back.
Second, in the social media age, political outcomes have hyperspeed flywheel effects. Success tends to beget more success because it builds momentum and goodwill as the news spreads on social media and is amplified by partisans. The public sees the success and poll numbers go up. Reports of the improved poll numbers circulate on social media and we are off to the races. Failures have the opposite effect and can lead to a downward doom spiral. Between Build Back Better, voting rights, the filibuster, and the general state of the world, the Democrats have been on a protracted losing streak. We need a win; and confirming the first Black woman to the Supreme Court would be a huge win and perhaps the beginning of a virtuous cycle and the end of this current period of Democratic doom.
The Right’s Next Move
Some Senate Republicans are already waving the white flag. Senator Lindsay Graham, a key player on the Judiciary Committee, recently said:
If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support. Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.
There are reports that the extremely well-funded Right-Wing judicial activist groups are unlikely to mount much of a campaign. The decision not to fight too hard makes sense. Senate Republicans have no ability to stop a united Democratic caucus from confirming Biden’s choice and unlike the Gorsuch, Kavanaugh, and Coney Barrett confirmations, this one is unlikely to make a difference in terms of the Court’s ideological balance or rulings on future cases. Even if Senate Republicans may go out in a whimper, the MAGA media is already in a full lather. Their focus is not on Biden’s choice, but his criteria. Molly Hemingway, the editor of the Federalist (a billionaire-funded troll farm), went on Fox News to call Biden racist and sexist for pledging to choose a Black woman.
Tucker Carlson said on his show:
It’s possible we have all marinated for so long in the casual racism of affirmative action that it seems normal now to reduce human beings to their race.
Trump’s Former Ambassador to the U.N. tweeted:
It is worth noting that Trump himself pledged to nominate a woman to replace Ginsburg so by the test set forth by these MAGA grifters, Trump is guilty of sexism.
The Right-Wing is laser-focused on Biden’s pledge because they have no choice. All of the big battles in American politics are ultimately about whether this country can become a true multi-racial democracy where power shifts from the conservative White minority controlling the majority of the political power. When Trump said “Make America Great Again,” he wasn’t referring to 1988 and he wasn’t speaking to everyone. Trump was referring to America in 1958, prior to the passage of key civil and voting rights laws, and he was speaking to White Americans. His use of the Nixonian term “Silent Majority” was an unsubtle callback to those days.
Fearmongering about Americans of color gaining political or economic power or immigrants gaining access to this country is how a Republican Party that advocates for the wealthy turns out a primarily working-class base. A Black woman on the most powerful court in this country is a very visible manifestation of what Republicans want their White voters to fear. The reaction from these conservatives should be seen as part and parcel of their efforts to ban books and lesson plans that teach about America’s true history. The reasons why a Black woman has never been on the court, and why she should be on the court, are impossible for them to justify. They are trying to erase the history that led to this moment.
The vacancy is an opportunity for Democrats to expose the Republicans for what they are — the cynics seeking to divide this country so that powerful insiders reap the benefits. And they get the chance to do it on one of the biggest stages in American politics.
As Stephanie Cutter, the Democratic strategist that spearheaded the confirmation of Sonia Sotomayor for President Obama wrote in the New York Times:
An overly deliberative process would add nothing in an environment this toxic and divisive. No one doubts that some Republicans will pluck a line out of a long-ago legal brief by the nominee and try to spin it as a fatal flaw or attempt to stoke racial tensions by demeaning her credentials. So we should not give more room for the opposition to tarnish the nominee. We need to set a strategy and timeline, ignore those critical of a fair but expedited nomination process — including from inside our own party — and maintain singular focus until the president’s nominee is confirmed.
Even if the odds of success are high, the confirmation process will be a political battle with implications that extend far beyond the Senate and the Supreme Court. With huge looming decisions from the court on abortion rights and guns, the stakes are likely to get even higher.