The battle for control of the Supreme Court is putting an urgent premium on presidential electability, political strategists on both sides of the aisle told the Washington Examiner on Tuesday.
Voters always value electability in presidential contests. But the consideration has assumed unusually tangible implications following the death of conservative Justice Antonin Scalia. Senate Republicans are vowing to deny President Obama's pick to succeed Scalia, saying it should be up to the next president, and by extension, the voters, to determine the future of the high court.
That has raised the stakes for Democrats and Republicans in November, and magnified the Supreme Court as a voting issue. If Senate Majority Leader Mitch McConnell, R-Ky., and his conference don't waiver, Obama's successor will select the next Supreme Court justice, and break a 4-4 ideological, conservative-liberal tie that now exists on the nine-member panel.
"It makes winning essential," Republican consultant Josh Holmes said. "Whether they want to or not, voters are adding electability into their calculus here at a much higher level as a result of this vacancy. I can't imagine a movement or a party more motivated to win a general election than conservatives and Republicans are right now."
"Without question, it raises the stakes for the election and increases the focus on electability," agreed a Democratic strategist, who requested anonymity in order to speak candidly. Specifically, some Democrats believe this helps presidential candidate Hillary Clinton, who is fighting off socialist Sen. Bernie Sanders of Vermont in the Democratic primary.
Scalia died Saturday at the age of 79, just hours before a major Republican presidential debate and one week before South Carolina's Republican primary. He was appointed by President Reagan, and was considered among the most influential conservatives to ever serve on the Supreme Court. In his written opinions, Scalia argued for the concept of "originalism" and interpreting the Constitution as the Framers intended, rather than according to preferred modern norms.
The Supreme Court always motivates the base of the Democratic and Republican parties in presidential elections. But losing Scalia, combined with the politically divided nature of the court, makes his replacement a particularly salient issue for committed GOP voters. Ditto the Democrats, who are motivated by the opportunity to tip the balance of power on the court their way. McConnell's immediate decision to block any Obama nominee is likely to further energize each party's base.
"It will plays a major role in the general election," GOP strategist Jim Dornan said. "The left will trot out abortion and affirmative action and the right will use it on Second Amendment issues, immigration and union dues."
Republican insiders are watching South Carolina intently to see if the issue impacts the outcome of Saturday's GOP presidential primary. New York celebrity businessman Donald Trump is favored to win there, leading most polls by double digits.
Trump is a populist without any roots in ideological conservatism. He's been critical of Supreme Court Chief Justice John Roberts for siding with the liberal justices and ruling in favor of upholding the Affordable Care Act, a.k.a. Obamacare. But until recently was a liberal Democrat who supported abortion rights and other progressive policies. There's nothing in Trump's past to indicate that he would prefer, and nominate, conservative judges.
His GOP primary opponents are hoping to make an issue out of this, and siphon away his support. South Carolina is conservative territory; and some of the leading Republican contenders have added a riff about the Supreme Court to their stump speeches. Sen. Ted Cruz of Texas is trying to capitalize through television ads that raise high court vacancy and suggest that Trump can't be trusted to pick conservative jurists.
"Life, marriage, religious liberty, the Second Amendment. We're just one Supreme Court Justice away from losing them all," the voiceover says as the latest Cruz campaign television spot opens. "It concludes: "We cannot trust Donald Trump with these serious decisions."
There's no polling data yet to substantiate that the Supreme Court issue is damaging Trump. But Republican insiders believe it could prove damaging, to the possible benefit of Cruz and Sen. Marco Rubio of Florida, the two Republicans closest to Trump — in that order — in most polls.
"It's going to be one more agent hardening the resistance of 60 percent of the Republican primary electorate to even consider Trump," Republican consultant Brad Todd said. "He's got his base and it won't change, but now his ideological apostasy is put into pretty stark pricing terms and I'm pretty sure he won't get any new customers."
McConnell's decision to block Obama's nominee to succeed Scalia before he even names one carries some political risk.
The Republicans are fighting to maintain control of the Senate in 2016, and to do so must win re-election bids in Democratic leaning states like Illinois, Wisconsin and Pennsylvania and swing states like New Hampshire and Ohio. The GOP also is attempting to hold onto the seat being vacated by Rubio in the purple state of Florida. The Democrats need to gain a net of five seats to win back control of the chamber they lost in 2014.
Most of the Republicans running in these states are supportive of McConnell's move. The issue will motivate the conservative base, and give them a real achievement in the effort to halt Obama's agenda at a time when many conservatives believe the GOP Senate majority has to deliver on its promises to curtail the president's power. Still, it could cause problems. Democrats also are fired up, and the politics could line up for them neatly in some races.
"In the Midwestern states, where the Republican coalition is right of center on cultural issues, I think this is a net positive," a GOP strategist said. "On the east coast, where we're having to fuse together college-educated moderates with rural populists, this may be a real problem."