With court pick fight, Democrats find their galvanizing issue

With court pick fight, Democrats find their galvanizing issue
© Collection of the Supreme Court of the United States

Democrats have never been adept at making the Supreme Court a campaign issue. I suspect that is about to change. 

For so long, Republicans have made picking Supreme Court justices and federal appeals court judges a galvanizing issue, even to the point that many conservative Republicans hold their noses and support Trump based on this matter alone. That is how much they prize having a conservative-leaning court that they hope, at some point, will overturn Roe v. Wade

The death of liberal icon Justice Ruth Bader GinsburgRuth Bader GinsburgAnti-abortion movement eyes its holy grail Abortion rights face most difficult test yet at Supreme Court Mississippi's attorney general asks Supreme Court to overturn Roe v. Wade MORE has agitated the political cauldron, and it remains to be seen just how this ingredient that was just poured into the election mix will affect the outcome.


A poll conducted prior to Ginsberg’s passing found that a majority of Americans, including most Democrats, believed that a vacancy should be filled by the current president. But that poll question was asked as a hypothetical.

A more recent poll, taken after the justice’s death, tells a very different story. Most Americans now believe the Senate should wait to confirm a justice until after the election. Only 28 percent of registered voters in this poll said Trump should fill the vacancy before the election.

Democratic presidential nominee Joe BidenJoe BidenHouse Republican calls second bout of COVID-19 'far more challenging' Conflicting school mask guidance sparks confusion Biden: Pathway to citizenship in reconciliation package 'remains to be seen' MORE and other Democrats argue that what Republicans said during the more than 200 days that they denied President Obama’s 2016 Supreme Court pick Merrick GarlandMerrick GarlandHas Trump beaten the system? Biden administration moves to withdraw death penalty requests in seven cases Federal gun trafficking strike forces launched in five cities MORE a hearing should apply now. Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGrassley pressured to run as Democrats set sights on Iowa House Democrats grow frustrated as they feel ignored by Senate Democrats question GOP shift on vaccines MORE (R-Ky.) and Republicans argued that since it was an election year, “the American people” should decide who gets to pick the next Supreme Court justice.

But McConnell and many other Republicans are flip-flopping, urging Trump to make a quick pick and committing the Senate to a vote for Trump’s nominee. 

In a now awkward quote that’s gone viral, Sen. Lindsey GrahamLindsey Olin GrahamDACA court ruling puts weight of immigration reform on Democrats Senate braces for a nasty debt ceiling fight Bipartisan group says it's still on track after setback on Senate floor MORE (R-S.C.) told us to use his words against him as he argued that a Supreme Court vacancy should never be filled in an election year. In a show of shameless hypocrisy, he is reneging on that statement and urging a Trump nomination.


Democrats must use the moment to energize their base and talk urgently about what is at stake. The new poll mentioned above, and the record amount of money raised by progressive online fundraising website Act Blue – more than $100,000 per minute in the hours after RBG’s death – shows that this can finally be the galvanizing issue for Democrats that it has been for Republicans for so many years.    

Vulnerable Republican senators should be concerned. Sen. Susan CollinsSusan Margaret CollinsTransit funding, broadband holding up infrastructure deal The Hill's Morning Report - Infrastructure vote fails; partisan feud erupts over Jan. 6 panel Senate falling behind on infrastructure MORE (R-Maine), in a tough reelection fight, has already said she believes the next justice should be picked by whoever wins in November and opposes holding a Senate vote before the election.

Sen. Lisa MurkowskiLisa Ann MurkowskiWhy Biden's Interior Department isn't shutting down oil and gas Biden signs bill to bolster crime victims fund Bipartisan group says it's still on track after setback on Senate floor MORE (R-Alaska) has also said she believes whoever wins the presidential election should nominate the next justice. 

Other vulnerable Republicans are no doubt eyeing these developments to see what would better improve their political fortunes — to support a president who lags in the polls or to oppose a vote until after the election.

Why would Democrats be energized now? Because so much is at stake, including the fate of the environment, of millions of “Dreamers,” of workers’ rights and of the Affordable Care Act and the millions who depend on it for health coverage, especially in the middle of a pandemic.

But reproductive justice is perhaps the most glaring right that is at stake with the next Supreme Court nomination. Since 1973, when the Supreme Court decided Roe, which struck down most state restrictions on abortion, many Republicans have been waiting to nix that decision.

Biden and Democrats should take nothing off the table. If Biden wins in November but Trump and Republicans succeed in ramming their nominee through during a lame-duck session, Democrats should expand the Supreme Court and the appellate courts. The backlog of court cases is enormous; more judges are sorely needed.  

Democrats will be galvanized and energized to fight for a Supreme Court that works for all Americans and a judiciary that protects the rights of everyone who lives in this great country.

Maria Cardona is a longtime Democratic strategist and was co-chair of the Democratic National Committee's rules and bylaws committee for the party's 2020 convention. She is a principal at Dewey Square Group, a Washington-based political consulting agency, and a CNN/CNN Español political commentator. Follow her on Twitter @MariaTCardona.