Ruth Bader Ginsburg died on Friday, creating a vacancy on the Supreme Court that will require the president to nominate a replacement who will be confirmed for the role by the Senate. If Ginsburg’s seat is filled by a right-wing judge who resembles recently appointed justices Neil Gorsuch and Brett Kavanaugh, there will be six conservatives on the nine-person Court, five of whom essentially function as Republican partisans. (Occasionally moderate establishment-upholder John Roberts would be the exception.)
In recent decades, Republican voters have been more motivated by the goal of controlling judicial appointments than Democrats have been. White evangelicals and other “pro-life” voters, in particular, have long held the goal of getting enough conservatives on the Supreme Court to overturn the Roe v. Wade decision.
Does this mean that the opening on the court will create a surge in support for Donald Trump’s reelection, either so he can appoint someone to fill the vacancy in his second term or, if Senate Majority Leader Mitch McConnell is able to smash through a Trump nominee before November, out of gratitude for McConnell’s role in creating an two-thirds majority that can be expected to invalidate every significant piece of progressive legislation for the next 20 years or so?
With the caveat that American voters elected Donald Trump as president and can therefore not be rationally analyzed with total confidence, the answer is: probably not.
First: Will this motivate Republicans, in general, to vote for Trump in greater numbers than they would have otherwise? It seems unlikely, because, according to polls, they were already fully motivated. Trump’s approval with Republicans has stayed extremely stable in the high 80s for the duration of his term. He is as popular now within his party as Obama was with Democrats in early 2009, and he is about as popular now within his party as he was when Gorsuch and Kavanaugh were confirmed. A late-August CNN survey found that only 4 percent of Republicans said they planned to vote for Joe Biden, a number that was inside the poll’s margin of error. More Republicans now say it “really matters who wins” the presidency than have said the same for any other election this century; the 2020 race was already expected to create record turnout for a presidential year in the same way 2018 saw record turnout—among both Democrats and Republicans—in a midterm year. (And in the 2018 House midterms, which took place one month after Kavanaugh was confirmed, Democratic candidates got 8.6 million more votes than Republican candidates.)
In sum, for a Supreme Court vacancy to increase Republican turnout and support for Trump, it will have to push GOP voter interest past already-unprecedented levels and do so to an extent greater than this will motivate Democrats via the sudden possibility of, for example, seeing Roe overturned. To believe that Trump will add net votes because of the opening requires believing that it is an issue that will make him more popular in his party than he was in 2016 or 2018—which were also election years in which control of the Supreme Court was a major topic of discussion. (Recall that in 2016, because of the Republican blockade of Merrick Garland, voters knew that whoever won the election would get to nominate a justice immediately.)
What about “pro-life” evangelicals? Are there abortion-focused voters, including independents, who have been soft on Trump recently but might now be induced to swing back to him? The evidence there is mixed. Two recent polls found Biden winning 11 and 12 percent more of the white evangelical vote than Hillary Clinton did; a July Pew survey, however, found the same number of white evangelicals saying they would vote for Trump this year as had voted for him , according to exit polls, in 2016.
Assuming the two recent polls are right and the one from July is wrong, and that there is in fact a slice of “swing” white evangelicals who have defected from Trump, the idea that they might suddenly swing back still runs up against the realities of this election’s extremely stable polling. Trump’s overall aggregate approval rating is currently at 43 percent, within a point of what it was when Kavanaugh was confirmed. Since May, he’s never trailed Joe Biden by fewer than 6 points in FiveThirtyEight’s polling aggregate. There are fewer undecided voters or voters who plan to vote third-party than there were at this stage in 2016, when those groups eventually broke toward Trump. (Biden is at 49 percent support on Saturday in RealClearPolitics’ average; Clinton’s support on Sept. 19, 2016, though she was leading the race, was only 45 percent.) And according to recent New York Times Upshot polling, undecided voters in three swing states—two of which, Arizona and North Carolina, are evangelical-heavy—trust Biden more than Trump to appoint Supreme Court justices.
Presidential-politics news has saturated the country to an unprecedented degree for the past four years, and almost everyone has made up their mind regarding what they think about the incumbent. On issue after issue, no position that Trump has taken has been more popular than he is; if he says he’s for something, a slight majority of Americans say they’re against it. For this pattern to suddenly be upended by a new iteration of a conflict that was already litigated extensively in 2018 via the Kavanaugh hearing … well, it’d be weird! Bookmark this prediction: When Trump announces his nominee to replace Ginsburg, the polls that come out a few days later will show that, let’s say, 42 percent of Americans believe that person should be confirmed and 51 percent believe they should not be.
Finally, there’s the fact of what a six-conservative Supreme Court would likely do: overturn Roe and invalidate the Affordable Care Act. Both those possibilities are going to be major parts of upcoming news cycles, and both decisions would be very unpopular, including among independent voters. Joe Biden would love to spend the last six weeks before the election talking to the median resident of Pennsylvania about his support for a tangibly threatened ACA. It’s an empirical rule of modern American politics: Republicans do worse when attention is drawn to the practical consequences of their policy agenda.
Donald Trump’s party has gained a semipermanent structural edge in the U.S. because it realized faster than its opponents did that pure partisanship in the legislative and judicial branches is extremely effective, even if voters as a whole don’t like it. That’s why Mitch McConnell would fill Ginsburg’s seat this afternoon if he could. But voters as a whole almost certainly won’t like what’s about to happen, and the presidential election is where, God and the U.S. Postal Service willing, they will have their say.
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