Voters will be more energized because of the vacancy created with the death of liberal Justice Ginsburg on Friday. The GOP has had more success to rally its voters and push the courts to the right. But the Democrats’ fear of a conservative majority may turn this court opening into a political advantage.
The flood of donations to Democratic candidates after Ginsburg’s death indicate a voracious liberal hunger to stop the courts’ conservative tilt.
The coming nomination fight will be more intense. Even before Ginsburg’s death Democratic voters cared more about the courts this election. The shift partially stems from the GOP’s recent successes in installing conservative judges at all levels of the judiciary. During Trump’s tenure, more than 200 federal judges have been confirmed and two justices have been appointed to the high court. Younger judges will influence the judiciary for future generations.
Until 2016, the threat of a conservative Supreme Court was never fully realized, because Roe vs Wade has been repeatedly upheld. However, Trump has made two Supreme Court appointments and will likely fill a third seat.
Democrats will benefit from supporter donations. After Ginsburg’s death reported Friday evening, ActBlue shattered records raising $30 million in 12 hours. Many women in the last 24 hours are ready to leave the sidelines and start phone banking and door knocking, said Rebecca Katz, a New York-based progressive strategist. The threat of overturning Roe is no longer hypothetical. For many younger women, the strategist said, “RBG was iconic and adored … and abortion is the one issue that people connect with the Supreme Court most of all.”
The prospect of overturning Roe vs Wade has held together the Republicans’ socially conservative base, conservatives have built a vast network to groom jurists, with groups such as the Federalist Society, and Republican lawmakers — especially Senate Majority Leader Mitch McConnell — have made confirming judges a top priority.
Liberals have lacked an equivalent infrastructure, and recent Democratic presidents devoted more of their political capital to major legislative lifts, such as the Affordable Care Act under Obama, than to judicial nominations, which were further obstructed by Senate Republicans.
Republicans have also united around a shared judicial philosophy of “originalism,” which promotes interpreting the Constitution according to the framers’ understanding at the time it was ratified. The theory has united that wing of the party since the Reagan administration.
Democrats have failed to develop a compelling philosophical counterargument, said Georgetown law professor Victoria Nourse, instead to emphasizing instead the importance of identity and diversity in the judiciary.
When Justice Antonin Scalia, a father of originalism, died nearly nine months before the 2016 presidential election, the prospect of a Republican president filling that seat proved a potent motivator to side with Trump.
“I have not talked to one person who voted for the president the last time that wasn’t willing to vote for him again,” said Penny Nance, chief executive of Concerned Women for America, a conservative Christian group. She described the court vacancy as “a big shot of adrenaline to the conservative base and particularly to conservative women.”
For Democrats, the court vacancy offers the chance to highlight a range of issues, beyond abortion, that could be affected by a 6-3 conservative majority on the Supreme Court.