Supreme Court Fights Are What Republican Majorities Are For

By Dan McLaughlin

Wednesday, September 23, 2020

 

There are times, in politics, for taking half a loaf. There are times for banking your winnings. There are times for retreating to defensible ground. There are times for building political capital for the future. There are even times for taking counsel of your fears. But a political party that never, ever tries to deliver on its core promises will sooner or later lose its voters, and it will deserve to do so. This is one of those times. If Senate Republicans do not throw everything they have at confirming a replacement for Ruth Bader Ginsburg in 2020, the Republican Party’s voters can, will, and should conclude that the party never will earn the votes, the labors, the money, and the trust they have been given these past five decades.

 

There are risks in this strategy, as there are risks in any strategy aimed at accomplishing anything significant in American politics. But the risks of not going forward are greater. Putting a good justice on the Court, rather than risking letting a bad one be appointed, is the right thing to do. Sometimes, you let bad things happen because a more important principle is at stake, but there is no principled basis now for refusing to do the right thing. As I have illustrated in depth, historical precedent supports a Senate majority in confirming election-year or even lame-duck Supreme Court nominees if it wants to. Similarly, precedent four years ago supported the Senate in refusing to confirm an election-year nominee when the voters had elected a Senate majority opposed to the president. In order to decline to exercise their constitutional power to confirm a nominee, Senate Republicans would have to invent a brand-new precedent. Their voters would be right in seeing this as a betrayal driven by cowardice.

 

Worse, it would be a betrayal based on guesswork that might be wrong. One thing that the past decade of American politics should have taught us by now is that nobody can predict what will happen next, or why. Of course, politicians, pollsters, and pundits get paid to make educated, informed guesses about voter preferences and political strategy. This column is one of those guesses. But we must always have the humility to recognize, when predicting how some event will affect elections, that we could be wrong. There were lots of predictions about how various past Supreme Court battles would play with voters, and many of those were wrong. There are many educated guesses about how the 2020 election will go, but some of those will be wrong, too. American politicians made decisions about the exercise of political power long before we had opinion polls.

 

What we can see without resort to guesswork is what politicians have promised their voters. Republicans have consistently, for five decades, promised to appoint conservative, constitutionalist judges who will follow the text and history of the Constitution. Few things have kept the disparate elements of the Republican coalition together, year in and year out, than the project to deliver on those promises. Like historical precedent, punditry and polling must be much clearer in order to justify abandoning those promises. If Republicans trade away a Supreme Court seat in exchange for election victories and lose the elections anyway, what have they gained?

 

A major driving force behind the constitutionalist project has been the long battle, now in its 47th year, to overturn Roe v. Wade. It is worth recalling how radical Roe was, and how dramatic its influence has been. The decision swept laws off the books in all 50 states, many of them at least a century old. The Court had never previously found any constitutional limit on abortion. It did not cite any particular provision of the Constitution, nor even pretend that any part of the Constitution had been understood, when ratified by the voters, to limit abortion. Just five years after the passage of the 14th Amendment, Congress banned the use of the mail to send “any drug or medicine, or any conception or article whatever, for the prevention of conception, or for causing unlawful abortion.” The fight over Roe is not a clash of different ways of reading the Constitution, but a fight over whether to read the Constitution at all.

 

Since Roe, there have been some 60 million unborn lives taken by legal abortion in America, a figure that staggers the imagination and dwarfs every other man-made cause of death that could possibly be attributed to political decisions. Ask any random sampling of Republicans what made them Republicans, and you’re sure to hear plenty of them talk about Roe.

 

Roe is, moreover, far from the only area into which the courts have inserted themselves, frequently without any basis in the rule of written law. Judicial decisions control what the voters and their elected representatives can and can’t do on an ever-expanding list of issues. Because of the life tenure of the justices and the difficulty of overturning precedents, appointments to the Supreme Court are perhaps the largest and most lasting thing a president or a Senate majority does, up there with taking the nation to war or enacting a permanent entitlement program. This is not the thing you trade away to win one election; it is the thing you win many elections to be able to do. It is what political capital is for. Democrats felt the same way about Obamacare, which is why so many of their legislators were willing to sacrifice their careers to pass it.

 

Some social conservatives and pro-lifers have argued over the years that the political branches should just go around the courts, ignoring and nullifying their rulings. Some want to impeach judges who do not follow the written Constitution. Some want state courts to defy the supremacy of federal courts. A few violent radicals, looking at the ghastly death toll of Roe, have even come to the ghastly conclusion that an atrocity on this scale calls for violence rather than the patient work of the political process.

 

Through it all, though, Republican voters have put their faith in the system and in playing by the rules. These have been the rules of the game: win enough presidential and Senate elections to get a majority of the nine justices. Yet, on Roe and a variety of other cultural issues, it hasn’t worked out that way: 14 of the 18 justices appointed since 1968 have been Republican appointees, but three of those (Harry Blackmun, John Paul Stevens, and David Souter) ended up as reliable liberals, two more (Warren Burger and Lewis Powell) joined the majority in Roe, and two others (Sandra Day O’Connor and Anthony Kennedy) voted to uphold Roe. That is only a .500 winning percentage for social conservatives, and the jury remains out on some of the current justices.

 

Side by side with a lot of broken promises in the electoral area, this has fed disenchantment, the sort that led George H. W. Bush’s popular majority coalition to collapse to 37 percent of the vote a few months after the Court reaffirmed Roe with the votes of Blackmun, Stevens, Souter, Kennedy, and O’Connor. In recent years, a rebellion against Republican leadership led to the Tea Party, and an even more primal rebellion led to the presidency of Donald Trump. If voters see that even the extreme step of choosing Trump does not lead to the party mending its ways, the next stop is to leave entirely.

 

There is every reason to believe that a critical mass of Republican voters care deeply about the courts, and that disappointing them would crater any hope for reelecting Trump or embattled Republican senators. Exit polls in 2016 showed that 21 percent of voters ranked the Supreme Court as the most important factor in their votes; Trump won these voters by 15 points, narrowly lost those voters who saw the Court as merely an important factor, and lost by nine points among voters who saw the Court as a minor factor and by 18 among voters who said it was not a factor at all. Google search data also showed a lot more interest in Trump and the Court than in Hillary Clinton and the Court. In 2018, the Brett Kavanaugh fight a month before the midterms couldn’t save Republicans in the House or in many governorships, but compared to mid-September 2018 polls, Republican Senate candidates rallied from behind in Missouri and Indiana, greatly expanded their leads in Tennessee and North Dakota, and narrowed the gaps in Montana, West Virginia, Ohio, and Michigan. Republicans gained Senate seats due in part to a friendly map, but the turn in the Senate polls before and after the Kavanaugh fight was plainly related.

 

Some polls show that Democrats are more focused on the Court now, and Justice Ginsburg was something of a celebrity icon. Still, the parties’ voting bases remain asymmetrical. The voters who care most about the courts on the left side are mostly the same people who are already on fire to vote out Donald Trump. The voters who might stay home because Joe Biden is uninspiring are more likely to be the Bernie-style voters who prefer more radical economic proposals rather than those who care about legal rules. By contrast, a lot of religious conservative voters who care deeply about the courts and the culture are far less enthused about Donald Trump. Many swallowed hard to vote for Trump in 2016; others stayed home or voted third party. Nothing brings those voters home, at least to Republican Senate candidates, like a Supreme Court fight.

 

That is doubly so once there is a live nominee, most likely a sympathetic Catholic working mother who will bring out the worst instincts of the cultural Left. Both of the leading contenders are Catholic moms: Amy Coney Barrett has seven children, two of them adopted, and Barbara Lagoa has three. It is one thing to listen to Democratic senators thunder on about what a terrible person Donald Trump is, if you are the sort of conservative Christian parent who does not want your children to imitate Trump’s behavior. It is entirely another to watch them do this to someone like Judge Barrett or Judge Lagoa.

 

Conservatives I respect, such as David French, argue that the country’s frayed nerves cannot stand this fight now. We are told that Democrats will threaten to tear down our institutions with Court-packing and other radical steps, and that there will be riots and disorder. But it is precisely at this time that Republicans should be standing up for the old-fashioned virtue of playing by the rules and defending the Constitution even when doing so brings the wrath of an angry mob. Doing the right thing when the seas are calm is easy. Doing the right thing when it will take all the courage you can summon is what genuinely principled politics looks like.

 

At this writing, it appears that Republicans have the votes to proceed on the nomination, probably before the election. There are 53 Republican senators, and Vice President Pence gets to cast the tie-breaking vote if it is 50-50. There are two defectors so far: Lisa Murkowski of Alaska has said that the nomination should not be taken up before the election, and Susan Collins of Maine has said that the seat should be left open for the winner of the presidential election. But it appears that the other 51 Republicans are on board, as Mitt Romney, Cory Gardner, Martha McSally, and Senate Judiciary Committee chairman Lindsey Graham have all said they would support a vote on a nominee. That is no guarantee: Republicans will still need to get the process done by November 3, and will still need at least 50 of those 51 senators to vote yes. If the vote drags past November 3, Republicans could be down one vote, as McSally trails in the polls, and her appointed term expires once an election is held. But for now, the votes seem to be there.

 

Maybe the politics works out for Republicans. Politically, there are few better messages than “the Constitution is on the ballot.” Maybe the politics was never going to work out for Republicans this year no matter what they did with a Supreme Court vacancy, and the fight against Court-packing and other radical steps by the Democrats is one Republicans would have to wage in the coming years anyway. But if there was ever a time to have the courage to do what is right, to deliver on promises to voters, and to support and defend the Constitution of the United States against all enemies, this is it.