Two major decisions by the U.S. supreme court, plus the almost
simultaneous announcement that a senior justice would now
retire, have put the final arbiter institution of U.S. constitutional
law front and center in the news from Washington, DC. A third
decision, not a landmark, but an important one, involves the
long-controversial issue of abortion, and so it is the fourth high
court flashpoint now introduced into the general conversation
of the 2018 national mid-term elections.
The only power voters have in regard to the supreme court is the
election of a president (who nominates each court justice) and
the election of U.S. senators (who must confirm any nomination).
Since this is not a presidential election year, the only political
recourse for voters are this year’s senate elections.
President Trump will nominate a replacement for Justice
Anthony Kennedy on or before July 9. GOP Senate Majority
Leader Mitch McConnell will then oversee what is likely to be
a rigorous examination of the nominee’s background, and a
vote on confirmation, he says, will take place in late September
or early October --- at least a month before the election.
In spite of the importance of these flash points to some of the
most important special interest groups in both parties, their
occurrence and timing will likely have very little impact on the
state primary elections, many of which have already taken
But will these supreme court flash points have notable impact
in November? That is a question more difficult to answer.
The groups most ardent on each side of the immigration,
abortion and labor issues, even before the recent decisions,
are already usually high-turnout voters. The nomination and
confirmation vote on the new justice will likely be done by
election day. Other issues, including the state of the economy,
might perhaps be more pressing in November.
But one question might play a decisive factor in several U.S.
senate races. President Trump has already signaled that he
will nominate a strong conservative to fill Justice Kennedy’s
seat. Mr. Kennedy was a conservative jurist much of the
time, but on certain social issues he sided with liberals on
the court. The new nominee is likely to be less of a swing vote.
This could put considerable pressure on senate candidates in
the autumn campaign. In those states, such as North Dakota,
West Virginia and Indiana, each of which Donald Trump
carried by big margins in 2016, Democratic incumbents will
be under pressure to declare they will break party ranks and
vote to confirm the Trump nominee. This is exactly what
Democratic Senators Heitkamp, Manchin and Donnelly of
those states did when Neil Gorsuch was confirmed in 2017.
These three incumbents are each very vulnerable in 2018.
This could also be a GOP advantage in Montana and
Missouri. On the other hand, non-incumbent Republican
senate candidates in Nevada, Florida, Wisconsin, and
Minnesota --- each which have substantial numbers
of pro-choice voters --- might see their prospects slightly
dimmed by their pledge to vote to confirm.
President Trump did well with blue collar and union voters
in 2016, and in 2018 seems to be doing even better. But most
of those gains seem to have been among non-public
employees. Public union members, those directly affected by
the supreme court decision, seem as Democratic as ever,
and might be especially motivated to turn out in November
--- although the decision can’t be changed.
Pro-life voters might by November finally have a slim
majority on the court, but most observers think that an
outright court reversal on Roe v. Wade is unlikely. Since
pro-lifers are traditionally high-turnout voters, any major
increase by them on election day is also unlikely.
In spite of the significance and controversies in recent
U.S. supreme court decisions, their timing just before
a national mid-term election does not seem to have clear
and predictable impacts.
But the same might not be true in the 2020 presidential
Copyright (c) 2018 by Barry Casselman All rights reserved.