Can the Supreme Court Save Republicans?

May 4, 2018

 

Almost every Tuesday lately brings news of another poor electoral showing for Republicans. They could not protect the Alabama Senate seat of Jeff Sessions in December 2017 or the House seat of Tim Murphy in March 2018. These outright losses have been accentuated by the more-frequent close victories that Republicans have secured in districts where Democrats should not be competitive. Republicans continue winning seats by less than 10 points in districts where they were accustomed to winning by over 20 points. Even Democrats who are losing close races force Republicans to spend money and depress their hopes of a 2018 victory. The fear of a blue wave also tends to close Republican donors’ wallets.

Republicans have tried numerous strategies to fight back against the possibility of a blue wave. They have argued that Donald Trump’s tax cuts gave more money to working Americans and that a Democratic majority would take it back. They have warned about the prospect of Nancy Pelosi once again becoming Speaker of the House and passing liberal, even leftist, legislation. Some have raised the threat of impeachment to bring Republicans to the polls, arguing that if Trump supporters “believe Democrats want to throw Trump out of office — the most dramatic negation of the 2016 result imaginable — they might rally to his side.” All of these arguments are complicated and rely on evidence (a positive Congressional Budget Office report, unified Democratic control, a Democratic pledge to impeach Trump) that does not yet exist.

But one Republican argument is much stronger than the rest, mainly because of its simplicity: the desire to keep the Supreme Court. As they did in 2016, Republicans today continue to argue that they needed to keep at least the Senate and the presidency to appoint potential Supreme Court nominees. Donald Trump made this point repeatedly during his campaign: “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges, Supreme Court judges.” Republican voters agreed with Trump’s assertion. According to a 2016 exit poll, 21% of Americans said Supreme Court appointments were “very important” to their vote, of which 56% were Trump voters.

The power of this argument makes it clearly attractive to Republican politicians Does that make it a winning one?

The prospect of saving a Supreme Court seat is the perfect political argument. In the 21st century, it is one premised solely on partisanship. There will be no partisan infighting and no chances that a dysfunctional Congress can blow up the chance at a seat. There will be no more John Paul Stevens, justices appointed by members of one party who end up acting more like members of another party. For Republicans, if a seat opens up, the Federalist Society will pick a feasibly conservative candidate for the president to nominate, and then a Republican Senate will confirm them. That new justice will spend much of his or her career voting for conservative priorities such as the weakening of unions, the eroding of abortion rights, and the end of regulations and laws that conservatives oppose. While a maverick senator can hold up a bill and an unreliable House might fail to pass anything, voters can be assured of at least one monumental Supreme Court ruling each year.

But will that really save Republicans? The Supreme Court was partisan and influential during the 1998 and 2006 midterms when Democrats made relatively strong gains. It also did not save the Republicans in earlier elections, as in 1970, when the Court was seen as a liberal force that Republicans wanted to curb. Appealing to voters’ desire to see their own party in control of the Court may be a powerful and simple political argument, but it does not overturn the rules of politics.

Even if the Supreme Court argument does not preserve the Republican House majority in 2018, its power should not be lost on the nation’s Democrats. The Democratic Party needs to introduce a set of reforms and constitutional changes that would require Supreme Court approval. They need to be short and simple, like the Republican demands to overturn Roe v. Wade. Then, Democrats need to hammer home both the positive aspects of a Democratic Court and the pitfalls of a Republican Court. Like it or not, the Supreme Court has become a political tool. Democrats need to learn how to use it.

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