A Supreme Court Vacancy and the 2020 Election: Kavanaugh Part 2?

Ruth Bader Ginsburg's 1993 swearing-in ceremony. @Yahoo

On September 18 at 7:32pm ET, the AP reported that Supreme Court Justice Ruth Bader Ginsburg was dead. Justice Ginsburg was known for her trailblazing legacy in the legal world as a fierce advocate for women's rights. Throughout her 27-year tenure, she became famous for her scathing dissents. Among her most notable opinions was her dissent in the 2007 ruling Ledbetter v. Goodyear Tire and Rubber Company. In a rare move, she read aloud her opinion at the bench, decrying what she saw as judicial activism working in favor of gender discrimination in the work place. Two years later, the Lilly Ledbetter Fair Pay Act of 2009 was passed by Congress and a framed copy hung in Ginsburg's chambers.

Her passing lays to rest one of the most remarkable careers in the history of the U.S. Supreme Court. It also leaves the Supreme Court with a 5-3 conservative majority and Donald Trump with the opportunity to nominate a third justice in his first term. In a striking abandonment of the precedent they established in 2016 after Justice Antonin Scalia died, Republicans have made clear they intend to move forward with a nomination before the election. 

In order to stop a Trump-appointed justice from being confirmed by the Senate, the 47 members of the Democratic Caucus would need to be joined by 4 members of the GOP. Who exactly these four members could potentially be is uncertain. So far, the only GOP senator to say the vacancy should be filled by the winner of the election in November is Senator Susan Collins of Maine. Senator Lisa Murkowski from Alaska is likely to join her. Other possible defectors include institutionalists Mitt Romney and Chuck Grassley, retiring Senators Lamar Alexander and Pat Roberts, and those with tough reelection bids like Cory Gardner. Furthermore, the Arizona Senate race is a special election in which the winner would be sworn in by the end of November. If Democrat Mark Kelly wins and replaces Republican Martha McSally, which is looking likely, this makes the math a little easier for Democrats if they need to block a confirmation during a lame duck session.

What effect will the vacancy have on the election?

Historically, the Supreme Court has been more effective at motivating Republican voters than Democrats. In 2018, many consider the Brett Kavanaugh confirmation process to have tanked Democrats' chances in a number of red state Senate races—namely Missouri, Indiana, North Dakota, and Tennessee. The process riled up the parties' bases and curtailed the crossover appeal that red state Democrats needed to win. That said, other red state Democrats like Jon Tester of Montana and Joe Manchin of West Virginia managed to hold on by narrow margins.

However, it is not clear that this go around will follow the same patterns. First, even before Ginsburg passed away, polling showed that the Supreme Court is motivating Democrats more than Republicans this year. Moreover, polling done over the weekend has already shown that Americans are not as divided on this issue as the beltway—62% of Americans, including half of Republicans, think that the vacancy should be filled by whoever wins the November election. 

If Trump and McConnell do indeed try to ram through a Supreme Court nomination, public opinion suggests there could be a backlash against the GOP. Given that a 6-3 conservative majority Supreme Court poses legitimate risks to the status of legal abortion in the U.S., this could hurt the GOP in some libertarian-leaning red states like Alaska and Montana, both of which have competitive Senate races this cycle. A 2014 Pew poll showed that 63% of Alaskans and 56% of Montanans support legal abortion in all or most cases—far higher than the 36% and 35%, respectively, of voters who supported Clinton in 2016. This same theory would suggest, though, that Democrats would now have worse odds in states like South Carolina and Alabama, where support for abortion hangs at 42% and 37%.

For GOP Senators trailing in their reelection bids in blue states, namely Susan Collins of Maine and Cory Gardner of Colorado, a floor-vote could present a massive opportunity. A defection could net them the cross-party support that they will need to win, and if polling holds, it seems as though GOP voters would not hold it against them too strongly either. However, a party-line vote could sink any remaining chance they have of securing those much needed votes from the left. Considering that Collins has come out early against a pre-election nomination, polling might soon reflect a shift in the race, but a floor-vote might be necessary to really shake things up.

Democratic Senators running in red states, on the other hand, seem as though they will carry less of the burden on this issue. Not only does the polling suggest that there is significant support across parties for a post-election nomination, but also none of the red state Democrats running are incumbents that would have to act in a floor vote. However, if public opinion does shift (which it often does in response to messaging from the top), we might see something similar to what occurred in 2018: party bases are riled up, and crossover appeal is tossed out the window. This could all but tank Democrats' chances in states like Kansas, South Carolina, Kentucky, and Alabama, although many would argue that Democrats may never have had a chance to begin with in these states.

It is too soon to tell what effects this will have on the presidential race. Will Democrats be disproportionately motivated and surge to the polls? Will enthusiasm for this issue fade in the face of an "October surprise" or perhaps a major spike in Covid cases? Will Donald Trump and Senate Republicans push back a floor vote into a lame duck session to protect Senate incumbents from a difficult vote? Not to mention, whoever Donald Trump nominates will come with their own set of headlines that will distract voters' attention. At the very least, it presents an opportunity for Donald Trump. Because he currently trails Biden by a wide margin, Trump likely loses in a no-news race. A major shake-up offers him a fighting chance.