Tumultuous court battle upends fight for Senate

The burgeoning battle over who should replace Justice Ruth Bader GinsburgRuth Bader GinsburgBill would honor Ginsburg, O'Connor with statues at Capitol Supreme Court's approval rating dips to 49 percent  Anti-abortion movement eyes its holy grail MORE is upending the fight for control of the Senate.

With 43 days until Election Day, and voting already underway in some states, the Supreme Court fight is a volatile issue likely to overshadow the final weeks of a campaign already taking place amid a historic pandemic.

“It’s another wild card into an already very I would say ... in some ways a volatile political environment,” said Sen. John ThuneJohn Randolph ThuneBiden's bipartisan deal faces Senate gauntlet Senate votes to take up infrastructure deal Senators say they have deal on 'major issues' in infrastructure talks MORE (S.D.), the No. 2 Republican senator


Sen. Dick DurbinDick DurbinCongress should butt out of Supreme Court's business Inmates grapple with uncertainty over Biden prison plan Democrats warn shrinking Biden's spending plan could backfire MORE (Ill.), Thune’s Democratic counterpart, predicted that the final stretch would be “intense.” Sen. John CornynJohn CornynBiden's bipartisan deal faces Senate gauntlet Senate votes to take up infrastructure deal Biden officials pledge to confront cybersecurity challenges head-on MORE (Texas), a member of GOP leadership, agreed, adding that “it probably goes through the roof on both sides.”

The Senate battle is viewed by political handicappers as a toss-up, with Democrats having momentum in recent weeks. They need to gain at least three seats and the White House to take back the majority.

Both sides believe the fight to replace Ginsburg will fire up partisans at a time when they are already amped up.
“I think you’re looking at a fairly combustible situation here, where it’s going to be something unlike what we’ve seen in American politics,” said a GOP official about the final stretch.

GOP senators are using the issue to contrast themselves with challengers in Georgia, Montana and South Carolina, three red states with seats that Democrats are hoping to flip.

Sens. Kelly LoefflerKelly LoefflerHarris's bad polls trigger Democratic worries Schumer, Tim Scott lead as Senate fundraising pace heats up Trump says Herschel Walker will enter Georgia Senate race MORE (R-Ga.) and David Perdue (R-Ga.) have both thrown their support behind the vow by Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden's bipartisan deal faces Senate gauntlet The Hill's Morning Report - Presented by Facebook - Biden sets new vaccine mandate as COVID-19 cases surge Democrats warn shrinking Biden's spending plan could backfire MORE (R-Ky.) to give whomever President TrumpDonald TrumpTrump PACs brought in over M for the first half of 2021 Chicago owes Trump M tax refund, state's attorney mounts legal challenge Biden hits resistance from unions on vaccine requirement MORE nominates a vote.

“If Democrats take control of the Senate, they have said they will add four seats and pack it with activist judges. The choice for the future of the Supreme Court is clear, and our nation’s founding principles are at stake,” Perdue said in a statement.


GOP strategists hope the fight will shore up their base, which views the courts as a top priority, at a time when they are worried about losing right-leaning independents unhappy with Trump and his handling of the coronavirus.

“This has the potential to bring soft Republicans back home in a significant way,” said a GOP strategist involved in the Senate fight.

While questioning how much the issue will really raise turnout, Republican strategist Doug Heye said it will drive fundraising and give GOP senators an issue popular with their base to tout heading into Nov. 3.

“They now have something new to talk about that allows them to be on offense, so it would be political malpractice not to,” said Heye, who called a Supreme Court confirmation battle “such a motivating factor for Republicans.”

In other states, the fight could help Democrats.

Sens. Cory GardnerCory GardnerEx-Sen. Cory Gardner joins lobbying firm Biden administration reverses Trump changes it says 'undermined' conservation program Gardner to lead new GOP super PAC ahead of midterms MORE (Colo.) and Susan CollinsSusan Margaret CollinsSunday shows preview: Delta concerns prompt CDC mask update; bipartisan infrastructure bill to face challenges in Senate Top Democrat: 'A lot of spin' coming from White House on infrastructure Bill would honor Ginsburg, O'Connor with statues at Capitol MORE (Maine) are the two GOP senators running for reelection in states Trump lost in 2016 and is expected to lose this cycle. Collins says the Ginsburg seat shouldn’t be filled until after the election.

Trump has criticized Collins and Sen. Lisa MurkowskiLisa Ann MurkowskiBill would honor Ginsburg, O'Connor with statues at Capitol The Hill's 12:30 Report - Presented by Facebook - US gymnast wins all-around gold as Simone Biles cheers from the stands The Hill's Morning Report - Presented by Facebook - A huge win for Biden, centrist senators MORE (R-Alaska), who also supports putting off the court fight until after the election.

“I think Susan Collins is very badly hurt by her statement yesterday. And I think — I think Murkowski is very badly hurt. And she doesn’t run for two years, but I think this will follow her into the beautiful … state of Alaska,” Trump told “Fox & Friends” on Monday.

He also praised Gardner, putting pressure on him to stick with McConnell.

“I think it’s going to help Cory. I do. I think it’s going to help Cory Gardner. He’s a great guy, by the way, and a — very, very loyal to the party and loyal to his state. He loves his state, and I know that for a fact,” Trump said.

Bitterness over the GOP’s decision not to give a hearing to Merrick GarlandMerrick GarlandDOJ sues Texas over Abbott order restricting transportation of migrants Graham, Cuellar press Biden to name border czar Garland floats legal action over Abbott immigration order MORE, then-President Obama’s final Supreme Court nominee, shadows the Senate fight.

Several vulnerable GOP senators, at the time, supported McConnell’s decision to refuse to give Garland a hearing or a vote.


Two years later, a fiery battle took place over Justice Brett KavanaughBrett Michael KavanaughOn The Money: Biden asks Congress to extend eviction ban with days until expiration | Economic growth rose to 6.5 percent annual rate in second quarter Biden calls on Congress to extend eviction ban with days until expiration An obscure Supreme Court ruling is a cautionary tale of federal power MORE’s nomination. Republicans hammered red-state Democrats over their votes against Kavanaugh, who faced old charges of sexual assault, and believed the issue bolstered their candidates in the final stretch of the 2018 cycle.

The 2020 fight comes amid a difficult environment for several GOP senators.

A New York Times-Siena College Research Institute poll found that voters in Arizona, Maine and North Carolina trust Biden more than Trump to pick a Supreme Court nominee.

“I think this raises the intensity and urgency on the Democratic side,” said a Democratic strategist, adding that “there’s a lot of energy and enthusiasm” among voters.

Pointing to the polling, the strategist added that Sen. Martha McSallyMartha Elizabeth McSallySchumer, Tim Scott lead as Senate fundraising pace heats up GOP group launches million ad campaign pressing Kelly on filibuster Democrats facing tough reelections back bipartisan infrastructure deal MORE (R-Ariz.), Collins or Gardner voting to confirm Trump’s nominee before the election could be “deeply problematic” for the three Senate incumbents.

Money has poured in for Democrats across the map following Ginsburg’s death, including more than $100 million as of Sunday through ActBlue and more than $20 million through the Pod Save America’s anti-McConnell initiative, according to a Democratic official.


Democrats are also seizing on how a more conservative Supreme Court could affect health care, an issue they believe fires up their voters and sways independents. Democrats put concerns over protections for pre-existing conditions and health care coverage at the center of their 2018 campaign, when they won back the House.

Putting health care at the forefront, the Supreme Court is scheduled to hear a case that could determine the future of the Affordable Care Act shortly after the November election, feeding fears that a 6-3 conservative court could strike down the law.

“Republicans have been dragged down all cycle by their records of refusing to stand up to the president for what’s right and voting to gut health care protections for pre-existing conditions. The question of filling this vacancy shines an even brighter spotlight on these vulnerabilities,” said Lauren Passalacqua, a spokeswoman for the Democratic campaign arm.