Supreme Court fight could reshape Senate races

Sept. 21, 2020 7:20 PM PT

WASHINGTON —

The debate over the Supreme Court vacancy is hardening partisan lines in the fight for control of the Senate, damaging the prospects for incumbents counting on support from ticket-splitting voters to keep their seats.

That dynamic further endangers the Republicans’ most at-risk senators, Susan Collins of Maine and Cory Gardner of Colorado, who have been focusing on local issues to woo swing voters in their Democratic-leaning states. Those issues have now been eclipsed by the polarizing national question of whether President Trump and the GOP-controlled Senate should move toward picking a successor to Ruth Bader Ginsburg before the 2020 elections.

But the showdown could help other Republicans in states where Trump remains popular, including Lindsey Graham of South Carolina, Thom Tillis of North Carolina and Joni Ernst of Iowa. All are locked in tight races and, needing to galvanize party voters, have demonstrated their loyalty to the president by quickly siding with him in the fight over the court’s future.

Overall, the battle for which party will win a Senate majority remains unpredictable and tied to Trump’s fate. In politically polarized times, fewer voters than ever are inclined to pick a president from one party and a senator from another, leaving the Senate candidates with limited ability to control their own destinies.

“It’s another wild card,” said Sen. John Thune of South Dakota, a member of the Senate Republican leadership. “It certainly is something that our candidates — and the candidates on both sides, for that matter — are going to have to manage because both sides are going to be heavily invested in the outcome of this decision.”

Still, even among those in tough reelection fights, Republicans see far more to be gained by sticking with the president: If they back away from him, they fear, they will lose conservative voters without picking up many liberal ones.

Collins is the only Republican up for reelection this year who has said Trump should not pick a nominee before the election; a second party defector, Sen. Lisa Murkowski of Alaska, is not on the ballot. Gardner on Monday joined other GOP senators facing the voters this fall who have backed Trump’s call for the Senate to approve his nominee. On Monday, the president said he would probably announce his pick Saturday.

In Montana, a state Trump won in 2016 by 20 percentage points, Republican Sen. Steve Daines eagerly grabbed on to the court issue. He is threatened by Gov. Steve Bullock, a Democrat who has turned the race into a toss-up in part because of praise for his handling of the COVID-19 pandemic in the state.

“If Joe Biden is elected, he will nominate, with the support of Steve Bullock, a liberal activist justice who will threaten our Montana way of life,” Daines said in a statement over the weekend. “I believe the Senate should move forward with confirming President Trump’s nominee.”

While Republicans welcome the shift of attention to the court — an easier topic to rally conservative voters around than defending the president’s response to the coronavirus — Democrats are trying to turn the court fight into a vehicle for revisiting their most successful issue of the 2018 midterm elections: healthcare.

The court is due to take up a case pivotal to the future of the Affordable Care Act just a week after election day. Chief Justice John G. Roberts Jr., who was chosen by President George W. Bush, delivered a tie-breaking vote in favor of the law in 2012. But Democrats and other court watchers assume the other four Republican-appointed justices, including two named by Trump, would strike it down; another Trump appointee could provide the necessary fifth vote.

This year, Democratic candidates have already made healthcare a central part of their campaigns. The looming court case brings new urgency to the message.

“Affordable Care Act Dangles From a Thread,” said a news release on the court vacancy from Senate candidate Cal Cunningham, the Democrat who is running against Tillis in North Carolina.

The court fight hurts Sen. Doug Jones of Alabama, the only Democrat up for reelection in a conservative state. He cannot win his long-shot bid with Democratic votes alone. Yet he has come out against Senate Majority Leader Mitch McConnell’s plan to have a Senate vote on Trump’s nominee.

“It is unconscionable that Sen. McConnell and the majority leadership position will allow him to go forward and push through a nomination to the United States Supreme Court,” Jones said Monday during a Facebook Live campaign event.

The Supreme Court debate may have even more direct effect on Senate races than on the presidential contest. For senators, the issue is not hypothetical: They are now being asked to take a stand on Trump’s demand that the Senate approve his nominee “without delay” and could soon be voting.

The cross-pressures on vulnerable senators such as Collins and Gardner is one of the reasons why McConnell (R-Ky.) is widely expected to put off voting on Trump’s nominee until after the election.

Gardner is considered one of the most endangered GOP incumbents because Trump lost Colorado by 5 percentage points in 2016, and his approval ratings have dropped since then.

In an interview Monday on “Fox and Friends,” the president strongly endorsed Gardner, which could help the senator among Trump supporters but undermine his effort to sway the crossover voters he needs to win.

Trump saw no downsides in the court fight: “I think it’s going to help Cory Gardner. He’s a great guy by the way and very, very loyal to the party and loyal to his state.”

Gardner announced his position later in the day on Twitter: “I have and will continue to support judicial nominees who will protect our Constitution, not legislate from the bench, and uphold the law. Should a qualified nominee who meets this criteria be put forward, I will vote to confirm.”

Gardner’s Democratic opponent, former Gov. John Hickenlooper, quickly denounced him, tweeting, “Cory Gardner is loyal to Mitch McConnell, Donald Trump, and the GOP. Not Colorado.”

The president has mocked Collins for rejecting his call for a Senate vote on a Trump nominee. She said there should be no vote before the election and said the vacancy should be filled by the winner.

At a rally in North Carolina on Saturday, Trump cited past instances when a court vacancy occurred during an election year.
“Every single time, the sitting president made a nomination.... Nobody said, ‘Oh, let’s not fill the seat!’” he said. “Now, we have some senators that, oh well, you know, forget it. I won’t say it ... I won’t say it, Susan! I won’t say it, Susan.”

Contrary to Trump’s version of history, however, in early 2016 — fully nine months before the presidential election — McConnell stated within hours of the death of Justice Antonin Scalia that the Republican Senate would not let President Obama fill the vacancy. He succeeded in keeping the seat open; Trump chose Neil M. Gorsuch the next year.

Though Collins opposed Trump on this issue, she nonetheless came under fire from her Democratic opponent, Maine House Speaker Sara Gideon, in an ad tying her to Trump and McConnell.

“The U.S. Senate under Mitch McConnell is virtually just rubber-stamping almost every one of Trump’s judicial nominees,” Gideon says in the ad. “They are going to affect us, our children, our grandchildren. We have to change the people who make him the majority leader. That includes Sen. Susan Collins.”

In South Carolina, Graham is in a difficult spot of his own making. He said in 2018 that he would oppose filling a Supreme Court vacancy during an election year. Now he has reversed course and supports moving forward on a Trump nominee, drawing a barrage of criticism for hypocrisy.

Graham will be central to the drama as chairman of the Senate Judiciary Committee, which handles Supreme Court nominations, at a time when he is being challenged for reelection by Democrat Jaime Harrison. Theirs is a surprisingly tight contest in a Republican-dominated state.

Election handicappers at the University of Virginia’s Crystal Ball publication on Monday upgraded Harrison’s chances of winning, although Graham remains favored. Crystal Ball analysts Kyle Kondik and J. Miles Coleman said that the senator’s prominent role in the court fight could help Graham make up ground and consolidate support among Trump voters.

“Graham is in greater danger of an upset,” wrote Kondik and Coleman. “The court fight could save him, though.”