SCOTUS confirmation in the last month of a close election? Ugly

Here’s the big question about the 2020 presidential campaign: Is it going to be about the coronavirus or the court? Democrats want it to be about the coronavirus. Republicans want the main issue to be the Supreme Court. 

Until now, the big issue in the presidential race has been the pandemic. President Trump’s poor performance has given Joe Biden a steady lead. Now, suddenly, with the death of Associate Justice Ruth Bader Ginsburg, the Supreme Court has taken center stage. The Supreme Court issue could be a game changer.

For more than 50 years, the Supreme Court has been the principal player in the culture wars. Trump is counting on the culture wars to propel him to victory. His message is, ‘Don’t worry about the coronavirus. It’s under control. Worry about which side is going to dominate the Supreme Court for the next 30 years — the left or the right.’

Beginning with the civil rights revolution of the 1960s, Democrats and liberals came to support a wide variety of social causes, including women’s rights, affirmative action, busing, gay rights, immigration reform, abortion rights, sex education, contraception, required teaching of evolution, tolerance of pornography, a ban on prayer in public schools, legalization of marijuana and, most recently, same sex marriage. Liberals defend those measures as enhancements of individual rights. Conservatives see them as enhancements of government power and threats to religious freedom.

Pat Robertson once argued to me that every item on the religious right’s social agenda — including those just listed — started out as a liberal initiative.

Many originated in federal court cases, often in Supreme Court decisions. The courts are the least democratic institutions of American government. That’s why religious conservatives see themselves as a populist force protesting government encroachments on personal morality and religious liberty.

Liberals see the religious right as culturally aggressive and themselves as culturally defensive. To conservatives like Pat Robertson and Ted Cruz, it’s the other way around: They see liberals trying to win government endorsement of their “anti-religious” moral and social values while conservatives are defending pluralism and tolerance.

Liberals are often frustrated because the Supreme Court is usually a bigger issue to the right than to the left. In 2016, only 21 percent of the voters nationwide called “Supreme Court appointments” the most important factor in deciding how to vote. The folks voted 56 to 41 percent for Donald Trump over Hillary Clinton. The people who said Supreme Court appointments were “not a factor at all” went 55 to 37 percent for Clinton.

A political backlash emerges when liberals see a threat to hard-won progressive rights. It’s happening now with the impending nomination of a staunch conservative to replace Ginsburg on the high court. Liberals see an expanded conservative majority on the court either striking down or radically limiting abortion rights, Obamacare, affirmative action, gun laws, protection for “dreamers” and same-sex marriage rights. “It means that we are going to war,” a Democratic activist told Politico.

We are certain to see a huge mobilization of forces on both the left and on the right. Supreme Court nominations have become a major battleground in American politics (Robert Bork, Clarence Thomas, Brett Kavanaugh). Presidential campaigns are another major battleground, particularly when one of the candidates deliberately exploits division as President Trump does. This year, an explosive presidential campaign and a furious confirmation battle are happening at the same time.

With a Republican president and a Republican majority in the Senate, Democrats have no real power in the court battle.

In the presidential race, only a small percentage of voters say they are still undecided (5 percent in Quinnipiac and Monmouth polls). Among voters who have decided, just 5 percent say they might change their minds according to Pew. 2020 will not be a campaign of persuasion. It will be a campaign of mobilization, with each side aiming to maximize turnout of its partisan base. You do that by exploiting fears, threats and intensely divisive issues.

A lot depends on whether the Senate floor vote on confirmation takes place before or after Election Day. President Trump is demanding a confirmation floor vote before Election Day. “It would be the new recent world record” if the Senate votes before Nov. 3, Sen. Roy Blunt (R-Mo.) said.

How will Democrats respond if the nomination is confirmed before the election? President Trump expects his opponents to be demoralized by defeat, but Democrats could just as well be infuriated and determined to take Trump down. Both reactions are plausible.

Suppose the confirmation vote is held after Election Day. Then everything might change, and not to President Trump’s advantage. If Trump loses, a huge wall of public opposition to his nominee could materialize. Democrats will protest, saying, ‘The people fired the president. How can the Senate confirm a crucial nomination by a lame duck president who has lost the mandate of the people?’

President Trump would likely see his influence diminish with Republican senators who don’t want to be identified with a “loser” — particularly if Republicans lose their Senate majority as well as the White House. Then Trump could be seen as politically toxic — the coronavirus of the GOP.

Bill Schneider is a professor at the Schar School of Policy and Government at George Mason University and author of ‘Standoff: How America Became Ungovernable’ (Simon & Schuster).