RBG — May Her Legacy Be Everlasting and Timing Impeccable
By Scott Adams
The death of Justice Ruth Bader Ginsburg was announced as Jews in America began celebrating Rosh Hashanah, the Jewish New Year. Justice Ginsburg’s Brooklyn Jewish roots helped form the foundation of a remarkable and trailblazing legal legacy. Her last wish was that a new President have the opportunity to replace her on the Supreme Court. She didn’t earn the Notorious RBG nickname for nothing.
The Justice’s supporters feared that she might not outlive the first term of President Trump. Her detractors openly planned for her replacement. The President’s team unveiled a list of potential replacements days before her death. Before Justice Ginsburg was buried, Mitch McConnell said that the Senate would hold a confirmation vote on the President’s nominee.
Justice Ginsburg’s timing may turn out to be impeccable. Her passing is a “September Surprise” and could set a trap for Republicans clinging to hopes of holding on to the Senate and resuscitating Trump’s flailing campaign. A poorly executed nomination could lead to devastating losses to Trump and embattled Republican Senators from Alaska to Iowa and Montana to the Carolinas.
All Risk, Little Reward for Republicans
In a pandemic where it is hard to appear before a large national audience, the Biden campaign would relish Senate Judiciary hearings which would feature committee member, and Vice-Presidential candidate Kamala Harris. Endangered Republicans up for re-election on the committee include North Carolina Senator Thom Tillis, Iowa Senator Joni Ernst and Committee Chair Lindsey Graham of South Carolina.
Republican operatives are clamoring about how this rare opportunity to replace a liberal justice with a conservative one will motivate their base to turn out and persuade undecided voters to support the President and Republican Senate candidates. The polling data shows no clear path for Republicans to gain undecided voters nor expand a maxed out base.
Among the states where voting has already started are the battleground states of North Carolina, Minnesota, Wisconsin, Pennsylvania and Georgia. In states where party registration is available, Democrats are leading Republicans by a 3–1 margin for those who plan to vote by mail. Nearly two-thirds of Democrats are expected to cast their votes early in person or by mail, compared to roughly 60% of Republicans who plan to vote on Election Day.
If the confirmation fight is badly managed and derailed during the election, it may drive away Republican voters waiting to cast their ballots on Election Day.
Republicans attempts to fast track a Supreme Court confirmation may have the effect of increasing turnout through early in person and mail in voting for Democratic candidates. A confirmation fight while voting is taking place may inspire women and voters under 45, two key constituencies for Democrats, to turnout in record numbers.
Traditionally, Republicans have been able to use the Supreme Court as a tool to get their supporters to the polls. In 2016, Trump won by 15 points among voters who prioritized the Supreme Court. But the circumstances surrounding the vacancy of a beloved jurist should provide immediate incentives to increase Democratic turnout.
Watching the Polls and Counting to Four, or Three
To defeat President Trump’s Supreme Court pick, it will take four Republican Senators to oppose taking up the nomination. McConnell has told his caucus to avoid making any declarative statements.
It’s no surprise that Susan Collins was the first Republican Senator to weigh in against holding hearings on the President’s Supreme Court nominee before the November 3rd Election. Collins trails Sarah Gideon in the RCP polling average by 6.2 points (47.2–41) and has been hammered by her vote against impeachment and to confirm Brett Kavanaugh. The Maine Senator needs to claw back moderate voters, especially college educated women from Gideon. There are relatively few right leaning, conservative court voters not already in her camp.
Joining Collins in opposition to holding hearings before the election is Senator Lisa Murkowski (AK) who had previously stated her opposition before Justice Ginsburg’s passing. Murkowski refused to answer a question about whether she would agree to take up the nomination after the election.
In reality, a nomination taken up after the election has a narrow window to confirm a life time appointment. With over half of Democrats expected to cast vote by mail ballots, the counting will be delayed. The President could very well hold leads in battleground states when reports come in after polls close. His expected claim of victory could very well disappear as mail in ballots are counted. With no clear winner on election night, it becomes harder to argue that the voters spoke and for the nomination to proceed.
Arizona Rises
Arizona adds a wrinkle with its special election for Senate. State law requires that the Senate seat being decided in a special election be certified on November 30th. Democrat Mark Kelly has consistently led appointed Republican Senator Martha McSally in the polls (RCP average has Kelly up +6.7 points, 50–43.3). Unlike Collins who has repeatedly won statewide elections, the appointed McSally, a failed statewide candidate, was the first Senator to support the confirmation process. If Kelly wins, and the confirmation process drags into November 30th, McConnell’s margin for error becomes three.
The Biden Rule
The next likely suspects to desert are Mitt Romney, Charles Grassley and Cory Gardner. Romney has an independent streak exhibited in his vote to impeach the President. Grassley has been in the Senate for 40 years and has repeatedly invoked the “Biden Rule.” As Judiciary Chair, Biden opposed the consideration of a nominee during an election year.
Colorado’s Republican Senator Gardner, is one of the most vulnerable senators running for re-election. He has trailed his challenger, former Governor John Hickenlooper, and like Collins needs to peel back moderates and women to survive. He has little room for growth to his right over a court fight. Gardner is playing it safe, and likely waiting to see what internal polling tells him. He said it was a time to mourn Justice Ginsburg “before the politics begin.”
Women, Moderates and Polls
It will take a few more days to see polling on filling the Ginsburg vacancy. All eyes will be on whether there is any movement with moderates, women and voters under 45. Any shift in these demographics towards the Democrats could prove fatal to any nomination. We’ll look at Iowa and North Carolina, two states with Republican Senators who are both narrowly trailing and on the Judiciary Committee.
National Poll — The Economist/YouGov September 13–15 poll shows Biden up 9 points. Biden has a 21 point lead with moderates 53–32; a 4 point lead with Independents 41–37; a 16 point lead with women 54–38; and a 20 point lead with voters under 45.
Iowa — The Des Moines Register/Iowa Poll September 14–17 has Democratic challenger Theresa Greenfield up 3 points, 45–42 over Republican Senator Joni Ernst. The Iowa Poll is a highly accurate state institution. The June poll that had the then relatively unknown Greenfield up the same 3 points, 46–43. After North Carolina, Iowa is the second most expensive Senate campaign with Democrats spending $90.8 million compared to the Republicans’ $64.7 million.
Greenfield as a 15 point edge among Independents 47–32; a 20 point edge with women 53–33; and a 17 point lead among Independent women 44–27. Notably, Greenfield is doing better with white women non-college (+ 20 points) than while women college (+12 points).
North Carolina — A New York Times/Sienna September 11–16 poll has Democratic challenger Cal Cunningham up 5 points, 42–37 over Republican Senator Thom Tillis. Notably 21% are undecided. Nearly $200 million has been spent on this race, making it the most expensive in the country. Democrats have outspent Republicans $117 million to $79 million.
Cunningham is up 8 points with Independents 38–30; up 8 points with women 44–36; up 14 points with college educated women 52–38; up 34 points with voters 18–29. Cunningham is also up 2 points with men, 41–39.
Be Careful What You Ask For
Voters get to add the Supreme Court to their top concerns — Covid-19, Economy and Race Relations. None of these bode well for incumbents in a change election. Republican Senate incumbents will be forced to double down with Trump and McConnell and confirm a new Supreme Court justice. Or join Collins and Murkowski in opposing a confirmation during the election.
A successful confirmation will motivate change voters and could lead to sweeping Democratic victories in the Senate and a crushing 350+ Electoral College win (413 is not out of the question). Democrats in the Senate will enact retribution including enlarging the Supreme Court to 15 jurists.
A botched confirmation will leave every incumbent Senator on their own, with a disgruntled base to turn out during polling hours on Election Day. Another recipe for disaster.
May Justice Ginsburg timing prove to be impeccable, and her memory be a blessing.
Scott Adams is Executive Creative Director at Award-Winning Green Alley Strategies, www.greenalleystrategies.com
