Electoral Implications of the SOTUS Vacancy

Perhaps a bit of a hot take.

As noted, the politics of Justice Ginsburg’s death are profound and dramatic. It is impossible not to think both about long-term implications, but also the fact that we are less than two months from Election Day. What effect could her passing have on the election?

While the immediate reaction of many has seemed to be that this advantages the Republicans in some way, I am not so sure (although to be honest, I am not sure that it will make a profound amount of difference in either direction).

The reality is that the election of consequence remains 2016, not 2020.

In terms of electoral advantage, it is to the Republicans’ advantage to leverage the results of 2016 to get another SCOTUS seat than it is to say “re-elect us, and then you’ll get the seat.” Why do that? This is classic bird-in-the-hand logic. This is especially true since the polling is all in Biden’s favor and even the odds are slightly in favor of the Democrats winning the Senate.

Under what political calculus should the Republicans wait?

The only reason to wait would be if they thought it substantially increased their chances of retaining the White House and Senate. At the moment, I do not see how that would be the case. Indeed, as we discussed the other day, the basic attitude of the US population to Trump has been remarkably stable. Why should this event be any different than the myriad of other dramatic events over the past four years that had not major effect on his approval?

What currently committed Biden voter is moving to Trump because of this?

What currently undecided voters becomes decided because of this?

Quite honestly, if there is an electoral effect, I think it will be motivating the anti-Trump vote in a way that was reflective in the high turnout in 2018.

The only electoral hay that the Trump campaign may be able to make here is using the threat of expanding the Court to try and motivate his base (but his whole campaign is based on motivating the base, so how new would this really be?).

Given that nothing (not impeachment, not a pandemic, not huge job losses, etc.) has moved the meter dramatically, I don’t see how this does, either.

But if Democrats needed another reason to get out and vote, here it is (but they are already pretty motivated).

Like the sub-title says, a bit of a hot take, so we shall see.

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FILED UNDER: Campaign 2020, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. James Joyner says:

    Trump appointing THREE Federalist Society Justices in his first term will likely help motivate some small segment of anti-Trumpers that he was worth it after all.

    Either way, I’m thinking the passing of RBG makes it even more clear to Democrats how little the differences between Bernie and Biden matter.

    Although, honestly, I’m more worried about “Let’s pack the court with six liberal justices, add DC and Puerto Rico, and otherwise send a big Eff You to Red America if we win” than I am about this particular seat.

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  2. @James Joyner:

    Trump appointing THREE Federalist Society Justices in his first term will likely help motivate some small segment of anti-Trumpers that he was worth it after all.

    I think this is true, but I think they were likely (like the woman from AEI whose name I forget) to talk themselves into voting for Trump anyway. Socialism! dontcha know.

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  3. wr says:

    I can actually see a reverse strategy for the Republicans — not that Trump believes in strategies.

    If he appoints another justice, what does he get from his base? Gratitude? What’s that worth, really? If it’s raining, how many more people will brave getting wet to say thanks?

    But fear and anticipation — those are motivators. Don’t nominate someone now — say there are norms to be followed. And say that if you get re-elected, you’re going to put Tucker Carlson. But if Biden wins, he’s going to install AOC there and give her three extra seats.

    Now you’ve got to go and vote for Trump.

    That would be the strong, confident move. So it ain’t gonna happen.

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  4. wr says:

    @James Joyner: “Although, honestly, I’m more worried about “Let’s pack the court with six liberal justices, add DC and Puerto Rico, and otherwise send a big Eff You to Red America if we win” than I am about this particular seat.”

    Might have been nice if those leading Red America had spent two seconds thinking about that as they spent the last 12 years giving a big Eff You to Blue America. Shockingly, sometimes actions have consequences.

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  5. @wr: I thought about that, but again: a bird in the hand is worth two in the bush, and McConnell (and Pence and others) know that.

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  6. James Joyner says:

    @Steven L. Taylor: Indeed. The number of us who generally prefer Biden to Trump but would be happier with the latter’s judicial picks have to be very small.

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  7. Michael Reynolds says:

    I doubt it will have much effect on the presidential race – both sides are in their trenches, equally committed.

    It’s the Senate that puzzles me. I suspect this helps Lindsay Graham, hurts Susan Collins, and I don’t know enough about Arizona, Iowa, Colorado, North Carolina or Georgia to venture a guess.

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  8. gVOR08 says:

    @wr:

    Might have been nice if those leading Red America had spent two seconds thinking about that as they spent the last 12 years giving a big Eff You to Blue America.

    They’re good with giving us a big FU. It’s a source of pride. It’s a question of power and they’re saying, “We have it and you don’t.” They know they can’t win democratically, but they can retain power.

    At OTB we’ve discussed the implications of a presidential system with first past the post voting. We talk about the undemocratic aspects of the EC, the Senate, gerrymandering, vote suppression. We’ve talked about passage of the Civil Rights Act pushing the conservative Ds in the South to the R side and largely eliminating the old overlap of left and right. This doesn’t seem to completely explain the current hyper-partisanship. And I don’t recall we’ve talked all that much about money.

    Piketty says economic inequality is growing and that accumulated wealth will dominate politics. I’ve been reading Hacker and Pierson, Let Them Eat Tweets. They show in detail how money has gained power. It’s structured around the “Conservative Dilemma”. The term was coined by Daniel Ziblatt who wrote How Democracies Die.

    The result is what Ziblatt calls the “Conservative Dilemma.” To participate in democratic politics, conservative politicians had to get and maintain voters’ backing even as their elite allies sought, in Ziblatt’s words, “to preserve their world, their interests, and power.”

    Republican politicians have settled on serving wealthy donors while conning the masses with faux populism, relying heavily on a culture war. We’re not an emerging democracy, but our stratospheric level of wealth concentration creates a new environment. And since they’re unable to fool all the people all the time, or even a majority, they have to exploit the undemocratic aspects of our system.

    Hacker and Pierson also make it clear that it did not have to be this way. Political Science says a party will try to assemble a coalition and try give the voters in that coalition what they want. This is what Nixon did. But again and again current Republicans push policies that aren’t remotely popular, even among Republican voters: tax cuts for the wealthy, healthcare, AGW, even abortion. So they have to rely on lying to their own voters (and occasionally throwing them a bone). Instead of committing wholesale to the plutocratic agenda they could have assembled a different coalition, compromising between their voter’s interests and their plutocratic funders. In their narrative Newt Gingrich is the big villain, realizing how much money he could raise by supporting the plutocrats.

    Trump won partly by offering popular policies on trade and immigration and promising to support SS, Medicare, and Medicaid, and replace Obamacare with something better. It was all BS except the trade and immigration stuff. The plutocrats don’t care about immigration, they offshored most of those jobs years ago and they accept letting Trump have his trade wars as a price to pay for his ability to con the base.

    So first, I’ve found Hacker and Pierson fill in a lot of blanks and tie a lot of threads together. Second, the GOPs are OK with giving Blue America a big FU, they aren’t going to get us anyway and it looks to their rubes like owning the libs. And third, of late Ds seem to be able to outraise Rs, almost entirely with non-transactional small donations, which may eventually allow Rs to question their reliance on the Billionaire Boys Club. Maybe they’ll revisit their 2012 post-mortem.

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  9. gVOR08 says:

    I don’t think Trump and McConnell are going to try anything politically cute by delaying this. There are going to be huge legal fights around this election, McConnell will want to get another Federalist clone on the bench in time to rule on the ratfracking. Insurance against Roberts having an ethics attack. And the Billionaire Boys Club will want her safely in hand before an election they can’t be sure of.

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  10. An Interested Party says:

    Although, honestly, I’m more worried about “Let’s pack the court with six liberal justices, add DC and Puerto Rico, and otherwise send a big Eff You to Red America if we win” than I am about this particular seat.

    Well, when you have people like Mitch McConnell and Donald Trump trying to do whatever they want and whatever they can get away with, they leave the other side with little choice but to do what you’re worried about…

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  11. ptfe says:

    @gVOR08: And it’s going to be Amy Barrett, the current far-right fave who once issued an opinion that declared the validity of an employer’s “separate but equal” racial accommodations. What can possibly go wrong?

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  12. @gVOR08: I think wealth/wage inequality is a huge part of the story.

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  13. Kathy says:

    This election reminds me of how Ambrose Bierce defined Manicheism in “The Devil’s Dictionary”:

    The ancient Persian doctrine of an incessant warfare between Good and Evil. When Good gave up the fight the Persians joined the victorious Opposition.

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  14. An Interested Party says:
  15. Ken_L says:

    Trump and McConnell’s best option would be to nominate someone but delay the confirmation vote until after the election. Get the propaganda network to spread hysterical warnings that if Trump loses, Democrats will find a way to prevent the appointment. That would maximize Republican turnout without requiring senators to declare their position. Then proceed to confirmation mid-November, before any election cases get to the Court.

    By the way I read a lot of commentary to the effect that four Republican ‘defectors’ would stop the vacancy being filled. I don’t follow this. I think it’s much more probable that the likes of Collins and Romney would abstain from voting, not vote against confirmation. That way they register their disapproval of the process without expressing a view of the nominee. If I’m right, it would take at least seven defectors to prevent confirmation, which seems extremely unlikely.

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  16. @Ken_L: The only need 50 votes plus Pence So it would take 4 defectors, which is unlikely IMO.

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