Republicans are greeting the Supreme Court clash expected to dominate Senate politics in the months leading to Election Day with glee, but it is filling Democrats with anxiety.
The GOP, which has been nervous about turnout, sees the prospect of a summer battle over Trump’s pick to succeed Justice Anthony Kennedy as a way to energize the base and get people to the polls.
Democrats, who had begun to feel more optimistic about November despite a difficult map that sees the party defending seats in deep Trump territory, are suddenly stuck between their voters and donors.
{mosads}Voter intensity among conservatives and liberals on the issue is expected to be high, but exactly how that plays out in Senate races in North Dakota, Montana, Indiana, Missouri and West Virginia is uncertain.
“It could have [an impact] in terms of voter turnout,” said Sen. Thom Tillis (R-N.C.), vice chairman of the National Republican Senatorial Committee. “It would probably produce intensity on both sides.”
Kennedy’s surprise decision to call it quits hands President Trump an opportunity to significantly remake the high court, replacing a conservative justice, who occasionally sided with liberals on issues like same-sex marriage and abortion rights, with a down-the-line originalist in the mold of his first nominee, Justice Neil Gorsuch.
Democrats and liberal groups see any new replacement as a potential threat to a host of core issues, from union and worker rights to environmental protections, the Affordable Care Act, and civil and voting rights.
“I didn’t think our enthusiasm could get bigger, but the tempest is coming,” said Sen. Chris Murphy (D-Conn.).
The fight will put more of a political focus on the race for the Senate, which had been overshadowed to an extent by the battle for the House.
“Justice Kennedy’s retirement makes the issue of Senate control one of the vital issues of our time. The most important thing we can do,” President Trump said Wednesday in Fargo, N.D., where he was stumping for Rep. Kevin Cramer (R).
Several outside groups have pledged to spend millions on advertising campaigns pressuring senators for or against an eventual nominee. That includes liberal groups that will pressure Democrats — even those in conservative states — to block Trump’s pick.
Democrats, including Sens. Joe Manchin (W.Va.), Joe Donnelly (Ind.), Claire McCaskill (Mo.), Heidi Heitkamp (N.D.) and Jon Tester (Mont.), have tried to show voters they are willing to work with President Trump when it benefits their state. Now, they will face cross-pressures from liberal voters and donors who will demand they take every step possible to block the court nomination.
“This becomes the defining issue in many of the closest Senate races this fall,” said Steven Law, who runs the Senate Leadership Fund, the leading Senate Republican super PAC. “For voters in deep-red states who support Trump, this will be the litmus test vote for whether you have President Trump’s back or not. Nothing else comes close.”
Asked Thursday about the coming nomination fight, several red-state Democrats demurred. Manchin refused to speculate about potential issues that would disqualify a nominee in his mind. Donnelly, who like Manchin voted to confirm Gorsuch, pledged to “look at whoever comes before us.”
Asked to comment on the open seat and the coming fight, McCaskill repeatedly declined to comment. “I’ve got nothing for you,” she said.
But McCaskill’s opponent, Missouri Attorney General Josh Hawley (R), who clerked for Chief Justice John Roberts, had plenty to say.
“The Supreme Court is the defining issue of our time. The Court makes decisions on some of the most pivotal issues in society — from the right to bear arms to religious liberty to immigration — and it is incumbent upon a United States Senator to outline what judicial philosophy they want justices to hold,” Hawley said in a statement Thursday. “Sen. McCaskill has been wrong on the last five Supreme Court nominees. Now she is ducking the question [of] what type of judge the president should nominate.”
In Indiana, where Donnelly faces former state legislator Mike Braun (R) in November, the Court fight will spur voters — specifically evangelical Christians — to the polls in levels far higher than a normal midterm, said Brian Howey, author of Howey Politics Indiana.
“Donnelly was counting on an energized [Democratic] base, but Kennedy just gassed up the evangelicals,” Howey said.
If Trump nominates Amy Coney Barrett, a judge on the 7th Circuit Court of Appeals and a Hoosier who like Donnelly graduated from Notre Dame and is one of the names on Trump’s list of potential picks, Donnelly would face added scrutiny. “This is the proverbial rock/hard place,” Howey wrote in an email.
In recent years, as Supreme Court nomination fights have become more contentious, senators who represent states that the other party’s presidential nominee carried in the previous election have become the most likely to break with their own party to support confirmations.
In the past four Supreme Court confirmation votes — for Justices Samuel Alito, Sonia Sotomayor, Elena Kagan and Gorsuch — a combined total of 21 senators from the other party voted for confirmation. Of those, 17 represented states that the other party’s president won in the previous election.
The only exceptions were Sens. Lamar Alexander (R-Tenn.) and Lindsey Graham (R-S.C.) and former Sen. Kit Bond (R-Mo.) who voted to confirm Sotomayor. Graham also voted to confirm Kagan.
Republicans said they hoped to use the coming election to pressure Democrats into backing Trump’s pick this time, too.
“If it’s before the November election, I would expect a few Democrats to vote for the nominee,” said Sen. Roy Blunt (R-Mo.).
Marc Short, the White House director of legislative affairs, said Thursday his office had reached out to red-state Democrats like Donnelly and Manchin before nominating Gorsuch. Asked whether the White House had begun reaching out to Democrats for Trump’s next nominee, he said: “I think it’s fair to draw that conclusion.”