The Memo: Dems face balancing act on SCOTUS fight

The Memo: Dems face balancing act on SCOTUS fight
© Greg Nash

Democrats, including presidential nominee Joe BidenJoe BidenMore than 300 military family members endorse Biden Five takeaways from the final Trump-Biden debate Biden: 'I would transition from the oil industry' MORE, are grappling with a tricky political calculus in the escalating fight over the Supreme Court.

The Democratic base is adamant that President TrumpDonald John TrumpMore than 300 military family members endorse Biden Five takeaways from the final Trump-Biden debate Biden: 'I would transition from the oil industry' MORE must not be permitted to have a replacement for liberal Justice Ruth Bader GinsburgRuth Bader GinsburgThe Hill's Campaign Report: Trump, Biden face off for last time on the debate stage Clean energy opportunities in a time of crisis Trump when asked if he'd be kinder in his second term: 'Yes, I think so' MORE confirmed before the elections.

But an incendiary court fight could also overshadow issues that may be more effective for Democrats in winning November’s elections — notably Trump’s response to the coronavirus pandemic.


“We need to be strategic, and not let this debate swallow all the attention to the issues that would ensure Trump’s defeat,” said one Democratic strategist who asked for anonymity to speak candidly.

“This election will not be a referendum on the Supreme Court,” the strategist added. “It will be a referendum on Trump’s handling of the economy and handling of COVID. We just need to be smart and make sure we don’t talk about this and nothing else.”

That could be easier said than done, given the passions that have been roused in the wake of death of the 87-year-old Ginsburg on Friday.

If a Trump-nominated conservative took her place, the nine-member bench would lean to the right by a clear 6-3 majority. That, in turn, would pose grave dangers for many liberal priorities, including the protection of reproductive rights and the landmark 1973 Roe v. Wade decision that undergirds those rights.

Liberal fury is intensified by the GOP’s shifting position on whether a president should be permitted to appoint a new justice this late into a term.

Senate Republicans — led then and now by Sen. Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell says 'no concerns' after questions about health Overnight Health Care: Trump says he hopes Supreme Court strikes down ObamaCare | FDA approves remdesivir as COVID-19 treatment | Dems threaten to subpoena HHS over allegations of political interference at CDC The Hill's Campaign Report: Trump, Biden face off for last time on the debate stage MORE (R-Ky.) — blocked then-President Obama’s Supreme Court nominee Merrick GarlandMerrick Brian GarlandRepublicans advance Barrett's Supreme Court nomination after Democrats boycott committee vote Democrats to boycott committee vote on Amy Coney Barrett's Supreme Court nomination The Senate should evoke RBG in its confirmation of Amy Coney Barrett MORE in 2016, on the basis that voters should have a say at the subsequent election.


By contrast, McConnell released a statement soon after Ginsburg’s death in which he made a commitment that Trump’s nominee “will receive a vote on the floor of the United States Senate.”

Democratic strategist Jamal Simmons characterized the Republican position as “a naked power grab” and said that his party should fight hard against it. But he also emphasized that Democrats need to keep their focus on Trump’s record.

“Democrats should make the case on values as to who the next Supreme Court nominee should be — as well as making clear the hypocrisy of the Republicans in the Senate, violating a rule that they put in place to get a nominee right now,” Simmons said.

“At the same time, this election is about Donald Trump’s inadequacies as the leader of the free world. particularly around the COVID pandemic,” he added.

Biden, for now, is following this template. He spoke in the crucial swing state of Wisconsin on Monday. His remarks, as prepared for delivery, focused overwhelmingly on the coronavirus and Trump’s divisiveness. The Supreme Court was not even mentioned.

At about the same time back in Washington, McConnell was defending his willingness to push for a vote on any Trump nominee in remarks from the Senate floor.

“The historical precedent is overwhelming, and it runs in one direction. If our Democratic colleagues want to claim they are outraged, they can only be outraged at the plain facts of American history,” McConnell said.

Trump, speaking with reporters at the White House, said he would announce his nominee on Friday or Saturday and added, regarding the confirmation process, “I’d rather see it all take place before the election.”

The huge political fight will only get bigger. Senate Minority Leader Charles SchumerChuck SchumerFive takeaways on Iran, Russia election interference Pelosi calls Iran 'bad actor' but not equivalent to Russia on election interference Schumer says briefing on Iranian election interference didn't convince him effort was meant to hurt Trump MORE (D-N.Y.) is holding the door open to Democrats possibly increasing the number of judges on the court, if Republicans press ahead with the Trump nominee and then lose control of the Senate in November.

“Once we win the majority, God willing, everything is on the table,” Schumer said in Brooklyn on Sunday.

In a show of solidarity, Schumer was joined at his Sunday appearance by Rep. Alexandria Ocasio-CortezAlexandria Ocasio-CortezHillicon Valley: Threatening emails raise election concerns | Quibi folds after raising nearly B | Trump signs law making it a crime to hack voting systems Ocasio-Cortez draws hundreds of thousands of viewers on Twitch livestream OVERNIGHT ENERGY: Democrats push expansion of offshore wind, block offshore drilling with ocean energy bill | Poll: Two-thirds of voters support Biden climate plan | Biden plan lags Green New Deal in fighting emissions from homes MORE (D-N.Y.), who asserted that congressional Democrats “must also commit to using every procedural tool available to us to ensure that we buy ourselves the time necessary” to block Trump’s nominee.

Supreme Court fights tend to matter most to partisans who are already very engaged. No one has any firm idea of whether this advantages the Democrats or the GOP this year.

Some on the left argue that the court fight could help juice Democratic turnout.

“I don’t think the Supreme Court will change people’s minds, but what it will do is drive people to go to vote,” said progressive strategist Jonathan Tasini.

“I think that benefits Democrats slightly more than Republicans because the polling shows Biden’s challenge is to turn out young people. People of color and people who might be on the fence as to whether they should vote or not. This adds a slight voting steroid.”

But even Tasini noted that other issues will take precedence for most voters.

“As the fight over the replacement continues, it is going to start to recede, like a lot of things,” he predicted. “After a few days of this, people are going to be back to thinking, ‘Am I going to be safe and healthy? Am I going to have a job?’ ”

The Memo is a reported column by Niall Stanage primarily focused on Donald Trump’s presidency.