The looming battle over President Trump’s third Supreme Court nominee will be colored by lingering bad blood over past confirmation fights, as both Democrats and Republicans have been radicalized by perceived slights to previous nominees.
Republicans and conservative activists are incensed by the treatment of Justice Brett Kavanaugh, who they believe was falsely smeared as a rapist and dealt with unfairly by Senate Judiciary Committee Democrats. Sen. Lindsey Graham, the South Carolina Republican who currently chairs the panel, has specifically invoked the Kavanaugh hearings in explaining why he has abandoned his reluctance to confirm a Supreme Court nominee during an election year.
“Lastly, after the treatment of Justice Kavanaugh I now have a different view of the judicial-confirmation process,” Graham wrote in a letter to committee Democrats, after first noting there was precedent for the Senate failing to confirm an opposite party’s high-court nominee in an election year. “Compare the treatment of Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh to that of Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and it’s clear that there already is one set of rules for a Republican president and one set of rules for a Democrat president.”
Graham was among the last Republicans to support Democratic Supreme Court picks, having voted to confirm President Barack Obama’s nominees Elena Kagan and Sonia Sotomayor.
Democrats counter that Kavanaugh got a seat on the Supreme Court, while Merrick Garland, the federal judge who was Obama’s choice to fill the vacancy created by Justice Antonin Scalia’s death, did not even get a hearing. In addition to avenging Garland, Democrats desperately want to defend Ginsburg’s seat and iconic status. If a Trump nominee to succeed her is confirmed, they will view both that seat and the one held by Justice Neil Gorsuch as stolen. Ginsburg died on Friday at 87 after a lengthy battle with cancer, saying a few days earlier, “My most fervent wish is that I will not be replaced until a new president is installed.”
“We all remember Mitch McConnell’s blockade of President Obama’s nomination of Merrick Garland 237 days before the 2016 election,” said MoveOn.org in a statement. “The 2020 election has already started—with voting already underway in many states — and it would be a truly inexcusable act of hypocrisy and injustice for Trump and Senate Republicans to move any nomination forward.”
The left-wing group also noted Ginsburg’s reported dying wish. “We must honor Ruth Bader Ginsburg’s legacy and hold every politician accountable to the most basic standards of fairness by demanding they not move any new nomination forward for a lifetime appointment to the highest court in the nation until every vote is counted and the inauguration is complete,” the statement continued.
For grassroots Democrats, Ginsburg is most important. “Merrick Garland doesn’t matter much to Democratic voters, but the legacy of Ruth Bader Ginsburg, equal rights, and choice for women, means a great deal,” said Democratic strategist Brad Bannon. “The fight over the SCOTUS vacancy will cement progressive support for Joe Biden.”
Trump’s Ginsburg replacement would also shift a seat from the liberal bloc to the conservative side, while Kavanaugh and Gorsuch both succeeded Republican appointees. “Up until now, GOP voters have had a stronger commitment to the president than Democrats had to Biden,” Bannon added. “Fear is a powerful motivating force in campaigns, and the fear factor over ending Roe v. Wade and the Affordable Care Act will close the enthusiasm gap and drive Democratic voters to the polls.”
Some Republicans agree that Trump is the Democrats’ motivator. “I don’t think the average Democrat senator could pick Merrick Garland out of a lineup. Rank-and-file Democratic voters don’t even know who Garland is,” said conservative strategist Chris Barron. “They aren’t mad about Garland or Ginsburg’s passing or losing control of the court. Their anger starts and ends at Trump’s election.”
Past election results have been mixed. Trump beat Hillary Clinton among voters who listed the Supreme Court as their top issue even after Senate Republicans held up Garland for almost a year. The Kavanaugh fight helped Republicans running in red states, allowing the GOP to expand its Senate majority in 2018 while hurting them in suburban swing congressional districts, which is where the party lost the House.
A poll released in August by the Pew Research Center found that registered voters ranked Supreme Court appointments third among issues they care about, 2 percentage points ahead of the coronavirus outbreak. Trump has said he will announce his nominee on Saturday, while his Democratic challenger, Biden, has kept mum about who he would elevate to the court.
