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Politics | The Atlantic
Politics | The Atlantic
What the Supreme Court Fight Means for the Senate Majority
The struggle over Ruth Bader Ginsburg’s replacement on the Supreme Court could help propel Democrats to the brink of a Senate majority in November’s election. But whether it lifts them over that threshold could turn on the terms of the confirmation fight. Given the nature of the states that will decide Senate control, the Democrats’ path to a majority may be much easier if they can keep the debate centered on economic issues—particularly the survival of the Affordable Care Act—rather than social issues, especially abortion.The reason: The confirmation fight is likely to further weaken the position of endangered Republican senators in Colorado, Maine, and Arizona—states where polls show a solid majority of voters support legal abortion. But even if Democrats flip all three, they will still likely need to win one more seat to take the majority. And in the next tier of states where they could possibly flip a seat, the politics of abortion will make that more difficult.What the confirmation fight could do is “give the Democrats a path to picking up two or even three Senate seats but make it harder in those other four or five states,” says Matt Mackowiak, an Austin-based GOP strategist.In the latter group—which includes North Carolina, Iowa, and Montana—voters are much more closely divided on abortion and, in some cases, lean toward the GOP. A confirmation fight focused on abortion is also likely to further diminish Democratic Senator Doug Jones’s already modest reelection chances in Alabama, a state with a clear anti-abortion majority.By contrast, the prospect that another Trump Supreme Court nominee could vote to overturn the ACA and its popular protections for those with preexisting conditions may create a broader set of opportunities for Democrats. Support for those protections are more consistent across party and regional lines than attitudes about abortion. And Democrats, as in 2018, have already invested heavily in ads reminding voters that all of the GOP incumbents (except Maine’s Susan Collins) moved to eliminate those provisions when they voted to repeal the ACA in 2017.[Read: Is this really the end of abortion?]“The president is in such a rush [to fill the seat], because he’s in a hurry to overturn the Affordable Care Act,” House Speaker Nancy Pelosi told The Atlantic’s editor in chief, Jeffrey Goldberg, referring to a Supreme Court hearing scheduled just days after the election on a Republican lawsuit to overturn the ACA. Trump “wants to get a justice in there in time for that so they can hear the arguments and vote on it. People have to know what this means to them,” continued Pelosi, who spoke with Goldberg this week at the virtual Atlantic Festival. “And what it means to 150 million families in America is that no longer will they have the protection of the Affordable Care Act when it comes to a preexisting medical condition.”Likewise, when asked yesterday about Amy Coney Barrett, one of the leading contenders for the open Court spot, Biden immediately zeroed in on what a new justice would mean for health care—even though Barrett is considered the most likely of Trump’s potential picks to vote to ban abortion. “I think we should focus on what this is going to mean for health care, what it’s going to mean to once again have to say if you’re pregnant [that] it’s a preexisting condition, to be able to charge women more for the same procedure as men. It’s wrong,” Biden told reporters.Historically, conventional wisdom in both parties has been that fights over the Supreme Court energize Republican voters more than Democratic ones. But operatives say the incredible surge of grassroots donations to Democratic candidates since Ginsburg’s death suggests that any GOP advantage on the issue has evaporated. As a result, most operatives I’ve spoken to aren’t expecting the confirmation fight to dramatically change the landscape in a year when the electorate’s divisions have been so deep and durable. “I have been saying for probably a year now that it will probably be record turnout since women got the right to vote,” says Glen Bolger, a longtime Republican pollster. “Does this increase that? I don’t know. Who said, ‘I’m not voting—oh, there’s a Supreme Court opening? Yeah, I’m voting.’ If you are still on the couch, I don’t know that this is the thing that gets you off it. I don’t know if anything does at this point.”Even if the Court fight doesn’t fundamentally upend the election’s dynamics, small tremors could have a huge effect given how tight many of the key Senate contests remain. Each party sees one principal potential benefit for their candidates.The biggest Republican hope is that a highly partisan confirmation fight will help GOP Senate candidates consolidate their party’s traditional voters, who in some races are supporting them at slightly lower rates than they are Trump, polls suggest. The theory is that a pitched battle over the Court will encourage voters to retreat to their traditional partisan corners. That would especially benefit candidates in crucial states that lean Republican already, such as North Carolina, Montana, Iowa, and Georgia. “If everybody goes to their own sideline, that is going to help those Senate candidates,” Bolger says.North Carolina Senator Thom Tillis would be the most likely beneficiary of such movement, given how consistently he’s trailed his Democratic challenger, Cal Cunningham, in polls. In those surveys, Tillis has almost invariably run behind Trump, including among Republican voters: Last week’s New York Times/Siena College poll showed Trump winning 89 percent of self-identified Republicans in the state and Tillis just 80 percent. The same dynamic might benefit Joni Ernst in Iowa: This week’s Des Moines Register/Mediacom poll found Trump winning 90 percent of Republicans there compared with Ernst’s 84 percent.In other states, polls show less room for further Republican consolidation. For example, a recent Quinnipiac University survey showing a surprise dead-heat race in South Carolina found Republican Senator Lindsey Graham already drawing 92 percent of Trump voters against Democrat Jamie Harrison. This week’s University of Georgia survey found GOP Senator David Perdue winning that same share of Trump voters against Democrat Jon Ossoff. “There’s not a lot left” for Perdue to squeeze out among Trump supporters, notes Trey Hood, a University of Georgia political scientist who supervises the poll.[Read: How to lose a swing state]Democrats also see opportunity in the fight, but with a different set of targets: less ideological swing voters exhausted with the level of partisan conflict in Washington. The most recent state polls show GOP Senate candidates trailing among independents in Arizona, Maine, and North Carolina; running even in Georgia (with a large number undecided); and leading only narrowly in South Carolina. In Iowa, Ernst already trails among independents by 15 points, an even bigger deficit than Trump faces among them.Anna Greenberg, a Democratic pollster working in multiple races, says the GOP’s attempt to push through a nominee is likely to alienate independent voters, given how Congress has been unable to agree on a relief package for Americans suffering economically or physically from the coronavirus outbreak.For those voters, “it’s another example of how deeply craven and political Washington is, and how deeply craven [Senate Majority Leader Mitch] McConnell is,” she told me. “It’s not that hypocrisy arguments are going to be all that powerful; people expect politicians to be politicians. But I think this idea that Rome is burning and we’ve got to do this thing right now couldn’t be a more political thing to do in a moment of ongoing crisis for the country.”The GOP’s rush, she says, “just reinforces that sense of intense partisanship, especially for independent voters who are longing for a return to normalcy … It’s exactly what independent voters don’t want.”Biden more closely reflected swing voters’ mood a few days ago when he urged Republicans not to escalate the partisan wars by rushing on a nominee, says Charles Coughlin, a veteran Phoenix-based Republican consultant. “Biden was like: ‘Don’t do this, this is not who we are,’ and I think that’s where most of the country, most of those middle-road voters, want to be,” Coughlin told me. “They don’t want to be in this highly charged atmosphere.”No issue in the confirmation process seems more likely to charge the atmosphere—or heighten interparty conflict—than abortion. For many liberals, the principal threat of appointing another conservative justice is that it will finally provide Republicans enough votes to overturn Roe v. Wade, the 1973 decision legalizing abortion. On a national basis, an argument over abortion is a clear winner for Democrats: In 2019 polling by the Pew Research Institute, 61 percent of Americans said abortion should remain legal in all or most cases. And the issue creates greater internal fissures for the GOP: The share of Republicans who said it should remain legal (37 percent) was more than double the percentage of Democrats who said it should not (17 percent). Josh Schwerin, the communications director for the Democatic super PAC Priorities USA, says the group’s research has found that a majority of the voters who switched from Barack Obama in 2012 to Trump in 2016 oppose overturning Roe.But that advantage isn’t consistent across the key Senate races. State-by-state polling results from 2018 and 2019, provided to me by the nonpartisan Public Religion Research Institute, show 56 percent or more of adults favoring abortion rights in Colorado, Maine, and Arizona, where Republican incumbents are endangered. Strong abortion-rights majorities of at least 55 percent are also evident in Michigan and Minnesota—where the GOP harbors longer-shot hopes of dislodging Democrats—and in Alaska, where an independent candidate remains within range of GOP Senator Dan Sullivan. In all of those states, white evangelical Christians, traditionally the constituency most focused on installing conservative justices, comprise just 15 percent or less of the population.But in Iowa, only a slim 52 percent majority favors abortion rights. Support dips to 49 percent in North Carolina and Georgia; 48 percent in Texas, Montana, and Kansas; and 47 percent in South Carolina. Evangelical Christians represent nearly one-fourth of the population in Kansas and South Carolina, one-fifth in North Carolina, and just below that in Georgia and Iowa. In all of those states, Mackowiak says, “these cultural issues are net unhelpful to the Democrats.” Support for legal abortion falls even further, to the low forties, in both Kentucky and Alabama.[Read: Trump takes away a lifeline for swing-state senators]Comparable state-by-state data isn’t available on the ACA’s protections for patients with preexisting conditions. But the 2018 election results suggest that defending those provisions was an effective argument for Democrats virtually everywhere. National polling earlier this year by the nonpartisan Kaiser Family Foundation reported that not only did 95 percent of Democrats and 83 percent of independents consider it “extremely” or “very” important to preserve those protections, but so did 71 percent of Republicans. More recent Kaiser polling, conducted in partnership with “The Cook Political Report,” found that voters in Florida, North Carolina, and Arizona all gave Biden big leads over Trump on the issue of protecting patients with preexisting conditions—a measure of how widely Democrats lead on that concern.Likewise, a new poll from the nonpartisan Commonwealth Fund, released today, found that voters in 10 battleground states prefer Biden over Trump on the issue. The Democrat led by double-digit margins in almost every state tested—not only in places where Democrats have been competitive, such as Michigan, Pennsylvania, Wisconsin, and Florida, but even in states where the GOP has dominated, like Texas, Georgia, Arizona, and North Carolina.Based on their advertising spending, Democrats are betting that health care may be even more relevant right now than in years past because of the likelihood that insurance companies will consider COVID-19 a preexisting condition. “The whole ‘pre-ex’ conversation is arguably more salient in ’20 than it was in ’18, and [the possible upcoming] Court decision adds to that," says J.B. Poersch, the president of Senate Majority PAC, the principal super PAC supporting Democratic senators. Adds Rachel Irwin, the group’s communications director: “A good portion of our advertising so far has laid the groundwork on preexisting conditions with personal stories. Every single Senate race has been hammering [that].”Confirmation hearings for a Trump-appointed justice who may provide the deciding vote to overturn the ACA could provide Democrats an unparalleled platform to “hammer” the message that Republican senators are threatening the law’s protections. With multiple contests now teetering on the razor’s edge, the Democrats’ prospects of winning the Senate may turn on whether they can do so.
theatlantic.com
A Defense of Court Packing
It was only a matter of time, really. Ever since Senate Republicans refused to hold a vote on Merrick Garland four years ago, progressives have argued that Democrats need to wrest back control of the Supreme Court by packing it full of liberal justices. By the Democratic primary last year, the idea had gone relatively mainstream, and half of the presidential candidates expressed openness to it. Now, in the five days since Justice Ruth Bader Ginsburg’s death, calls from the left to pack the court have reached a volume that will be difficult for party leaders to ignore. Democrats have few options to try to prevent President Donald Trump from confirming his nominee, whom he plans to announce on Saturday. So they’re already gaming out how to get revenge.If Trump confirms a new justice this year, “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court,” Senator Ed Markey of Massachusetts tweeted over the weekend. Democrats at various levels of seniority followed suit, including House Judiciary Chairman Jerrold Nadler and Representative Alexandria Ocasio-Cortez of New York. Even Senate Minority Leader Chuck Schumer seemed receptive: “Nothing is off the table next year” if the GOP tries to fill Ginsburg’s seat, he said.[Read: What Ruth Bader Ginsburg’s death means for America]Aaron Belkin, a political-science professor at San Francisco State University and the executive director of the think tank the Palm Center, is grateful to see prominent Democrats finally coming around to the plan he’s spent the past year trying to advance. In 2019, Belkin co-founded the advocacy group Take Back the Court in response to Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh.The trouble for Belkin and other Democrats is their goal’s political feasibility—and not just because the party has to win the Senate and the White House first. Joe Biden has shown reluctance to eliminate the filibuster, which Democrats would need to do to pass a court-expansion law, and he is outright opposed to increasing the justices’ numbers, disinclined to take any radical action that would further exacerbate partisan tensions. “We need to de-escalate, not escalate,” he said during a speech in Philadelphia over the weekend. In a local-news interview last summer, he warned that Democrats would “rue” the day they packed the Court because Republicans would simply do the same the next time they were in power.I talked to Belkin about these objections, and asked him to lay out the case for court packing—and the effect it might have on American democracy. Our conversation has been lightly edited and condensed for clarity.Elaine Godfrey: How would Democrats go about court packing if they’re in power?Aaron Belkin: It’s a straightforward process, but not a politically easy process. What would have to happen is that they would need to pass a bill [to expand the Court], which means they would need to kill the filibuster. [After the law passed through both chambers of Congress,] the president would have to sign it. Then they would nominate new justices. The court size has changed six times in American history, so this has been done before.Godfrey: Let’s say that Trump’s new nominee is confirmed. What’s a good number that the Democrats could expand to?Belkin: I would argue that the number is six. For each of the three justices he will have appointed, you would need two justices to nullify the effect of each illegitimately appointed justice. If you just appoint one for one, then you’re not nullifying the illegitimately appointed justices.Godfrey: So, six more, you’re saying. A total of 15.Belkin: Yes.Godfrey: But wouldn’t Republicans do the same thing the next time they’re in power?Belkin: This is perhaps the No.1 concern that’s been voiced, but it doesn’t stand up to scrutiny. A couple problems with this: The first thing is that the Court has already been stolen. If your wallet is stolen, you don’t forgo efforts to recover it just because it might be stolen again. It would probably take a generation—25 or 30 years—for the Democrats to get the majority on the Supreme Court back. If the Republicans steal the court, then the Democrats un-steal it. And if the Republicans steal it again, then the Democrats un-steal it again. It’s much better to have that zigzag than to just have unilateral surrender.For people who are worried about Republican retaliation, court expansion is the safest way to protect democracy and the safest way to de-radicalize the Republican Party. The party has become completely unmoored from facts and reality. Progressives have a fantasy that thrashing the Republicans at the ballot box can de-radicalize them. That’s not true. The only way to de-radicalize the Republican Party is [for Democrats] to come back into office after the 2020 election and do three things: kill the filibuster, pass a democracy-reform bill, and expand the Court. If you unrig the system, the GOP will have to be de-radicalized at least a bit in order to win elections, and that is what will make the courts safe from Republican retaliation. They’ll be less radical as a party.[Read: The decline of the GOP]Godfrey: But even if Republicans become “less radical” after Trump, won’t they still want to put conservative justices on the Court?Belkin: Part of what I mean by de-radicalization is an acknowledgment that it was wrong to steal the court in 2016, and that when the Democrats un-stole the court, that was a necessary thing to do. There’s something called a “hurting stalemate” where both sides realize that, Okay, it’s been enough already; let’s reach an equilibrium. If Democrats un-steal it and unrig the system, and the GOP de-radicalizes, hopefully, wiser heads would prevail in the Republican Party. There’d be acknowledgment that, like, Okay, democracy does matter. And let’s play by the rules from now on. Even if Democrats do expand the court, there will always be Republicans who want to retaliate. But the point is that, ideally, in a de-radicalized party, those voices wouldn’t prevail.Godfrey: It’s just really hard to imagine the Republican Party saying they “stole” those seats and were wrong for doing so.Belkin: They’re going to lose elections if they don’t de-radicalize in a free and fair system. It’s already hard for them to win elections. Trump barely skated by in 2016. It might take a couple thrashings at the ballot box in a free and fair system for the wiser heads to prevail. But, again, if the system is unrigged, they can remain as radical as they are, but it’s going to be hard for them to win elections.Godfrey: You’re arguing that, in order to save democracy, Democrats need to eliminate the filibuster, pass democracy reform, and expand the court. But that isn’t a given—not all Democrats are on board.Belkin: If the party doesn’t win in 2020, and do those three steps, I would argue that democracy is effectively over. Yes, we will still have elections, and yes, Democrats will still win those elections from time to time. But Democrats won’t be allowed to govern when they win, because of obstructionism and stolen courts.Let’s look at each step. It’s going to be hard to change the filibuster. But there has been incredibly widespread recognition among party leaders—including the most obstructionist opponents to filibuster reform like [Senators] Chris Coons and Joe Manchin—that [it] might have to go, because they’ve seen Mitch McConnell take obstructionism to historically unprecedented levels. What about the democracy [reform] bill? The first thing [Nancy] Pelosi did when Democrats took back the House, they dropped H.R. 1. The party is clearly committed to passing democracy reforms. It doesn’t mean it’ll happen, but it means that there would be a very, very, very large push.Now what about court expansion? When I started [Take Back the Court], people thought the idea was nuts. There were zero organizations in favor of the idea. Fast-forward two years, even before Justice Ginsburg died: We have elevated the conversation to the point that 11 presidential candidates said they were open to court expansion; 17 major progressive organizations, including Sunrise [Movement] and NextGen, are calling for court expansion. We’ve moved the Overton window such that even the Democratic Party is committing on its platform to structural reform of federal courts.That was before Justice Ginsburg died. Now, a few days later, Senator [Mazie] Hirono, Senator Markey, Representative Nadler, thought leaders like Heather McGhee [said they support packing the court]. Schumer said, “If McConnell fills this vacancy now, everything will be on the table.” That means court expansion is on the table. So I don’t think it’s an easy path. But it is a realistic path.Godfrey: There are people who will say, “This is an explicit Democratic power grab!” What’s your response to that?Belkin: That’s fucking bullshit. The Supreme Court is working to destroy democracy because the Supreme Court is a partisan court; the conservative majority is politicians in robes who are trying to help Republicans win elections. They don’t care about law. They don’t care about doctrine. They don’t care about fairness.So, yes, it is the Democratic Party that would have to put in place the changes to restore democracy by killing the filibuster. It’s the Democratic Party that would come to change Senate rules, that would have to pass democracy bills like H.R. 1 and the John Lewis [Voting Rights] Act, and it would have to expand the Court because the Republican Party is trying to sabotage democracy. The point is to save democracy; the point is not to do a partisan power grab.Godfrey: How would passing H.R. 1 make Republicans less radical?Belkin: If [Democrats] do it right, they will provide automatic voter registration, ban hyper-partisan gerrymandering, put in place campaign-finance limitations, grant statehood to D.C. and the right of self-determination to Puerto Rico, provide a quick path to citizenship for law-abiding citizens, ensure the right of ex-offenders to vote. That’s what you would do to unrig the system. In a free and fair system, the Republican Party cannot win as often as it does. If you undo the cheating, either they lose or they de-radicalize.Godfrey: What about other ways to reform the Court? During the Democratic primary, Pete Buttigieg proposed a different 15-justice plan to expand the Court. Others suggest term limits. Do you consider those viable options?[Read: The Democrats discover the Supreme Court]Belkin: We don’t have time for an academic conversation about alternatives, given that there’s no time left on the climate-change clock and that democracy is all but dead. Campaigning on simple, clear, straightforward ideas is important. Court expansion is something that everyone understands. Term limits look great on paper, but that’s not going to rebalance the courts. Term limits would not protect desperately needed change, like climate-change legislation, from [being struck down by] the Court.Godfrey: Let’s say that we do get into this zigzag pattern. Democrats add six justices, and then Republicans add a few, and we go back and forth this way. The Supreme Court will end up having a couple dozen justices. Won’t that eventually degrade its legitimacy?Belkin: If the Democrats kill the filibuster, pass democracy bills to restore democracy, and expand the Court, I would argue that a radicalized Republican Party is not going to be able to win elections and retaliate by packing the Court. So I guess I would question the premise of the question.I was talking with a Harvard professor who hates my project. He thinks that Democrats have to adhere to norms, and he said to me, as painful as it is, the better option for Democrats is to “continue to allow themselves to get kicked in the face for 35 years” than to expand the Court. That’s how long it’s gonna take for the Democrats to get the Court back if they don’t expand it. I mean, do we have 35 years left on the climate-change clock? Do Black people who can’t vote have 35 years left when they shouldn’t be allowed to vote?
theatlantic.com
Trump Takes Away a Lifeline for Swing-State Senators
President Donald Trump demands loyalty, but isn’t so quick to return it. Republican members of Congress have passed his bills, rationalized his behavior, kept him in power. Now, with a new Supreme Court vacancy, some of the GOP senators who risked the most in tethering themselves to Trump sorely need his help keeping them in power. He isn't guaranteed to deliver.Trump tweeted today that he’ll announce his nominee at the White House on Saturday, and he’s said that he wants a vote to take place before the November 3 election. That could spell trouble for swing-state Republican senators in tough reelection fights, such as Susan Collins of Maine and Cory Gardner of Colorado. They have one obvious lifeline: Voters could split their tickets, backing Joe Biden for president and supporting Republicans down-ballot. But Trump is making that prospect a lot less likely. A fierce confirmation fight over the conservative replacement for Ruth Bader Ginsburg may only reinforce purely partisan voting patterns.Trump gives senators little space to carve out the sort of independent identity that might make ticket-splitting more realistic. As I’ve written before, his intolerance for apostates has been a pattern throughout his presidency; he won’t brook criticism from inside the party or out, even as handling of the pandemic and civil unrest has made his administration’s performance tougher to defend. Pushing a nominee through before Election Day poses perhaps the starkest test yet of Trump’s insistence on fidelity. He’s asking that senators cast one of the most polarizing votes imaginable, amid one of the most fraught races in modern history, on a timeline driven by a political clock.A preferable scenario for embattled swing-state senators would be for Trump to put off a confirmation vote and let the election winner pick the nominee. Or, alternatively, he could wait until the election passes and announce a nominee during the lame-duck period, sparing senators the need to vote before November 3.Either approach could placate moderates and independents recoiling at the rush to fill the vacancy, as well as suburban-women voters stricken by Ginsburg’s death. “I need suburban women to be ticket splitters, and I can’t lose them as ticket splitters,” Sarah Chamberlain, the CEO of the Republican Main Street Partnership, a moderate-Republican advocacy group, told me. “If we don’t handle this correctly as a party, we’re going to have a problem.”Collins was trailing her Democratic opponent, Sara Gideon, by five points in a poll released this week. Gardner has the misfortune of running in a state dominated by independent voters who largely favor his Democratic rival, former Colorado Governor John Hickenlooper. Making things worse for the senators, Trump is struggling in both states, meaning his vaunted base likely isn’t enough to grind out victory for other GOP candidates. He’s trailing Biden by nearly seven points in Colorado and 14 in Maine.A vote on a Supreme Court nominee “makes it that much harder for Collins and Gardner, because [they were] trying to run independently of Trump as much as they could,” Jessica Taylor, the Senate-and-governors editor at “The Cook Political Report,” told me.Gardner aired a 30-second TV spot in the spring that made no mention of the president. Collins has long struck an awkward balance in which she sounds disapproving of Trump, but doesn’t actually throw up obstacles to what he’s trying to achieve. Like Gardner, Collins voted to acquit the president during his impeachment trial earlier this year, even as she complained about his behavior; she memorably said that she believed Trump had absorbed “a pretty big lesson” from the ordeal.When it comes to both senators’ reelections, the Supreme Court vote “brings it all back to Trump,” Taylor said.Collins and Gardner have staked out different positions when it comes to picking Ginsburg’s successor. Gardner put out a statement yesterday indicating that he’d vote to confirm a Trump nominee who meets certain standards. Collins, though, took issue with the president, saying that the candidate who wins the presidential election should be the one to choose.Trump’s focus isn’t on the Senate’s fate so much as his own. A quick Court appointment works to his advantage, diverting attention from his handling of the coronavirus pandemic and potentially giving his core supporters extra incentive to vote. Evangelical voters in particular are “now going to turn out, because they know what’s at stake,” Bryan Lanza, a former Trump-campaign adviser, told me, referring to immigration, taxes, and the environment, among other issues. “This is their one window. They’re not going to let it go by.”A speedy confirmation would also bulk up the Court’s conservative majority ahead of what could be a slew of litigation arising from the election. Disputes over recounts and mail-in ballots may well wind up before the Court. In the 2000 presidential race, the Supreme Court voted 5–4 to stop a recount in Florida and thereby handed George W. Bush the presidency. Should Trump confirm another justice by November 3, he’d enter the murky postelection period in a formidable position: Six of the nine justices will have been appointed either by him or other Republican presidents. “An ideological shift on the Court could have a pretty profound impact on the outcome,” Rosa Brooks, a Georgetown University law professor, told me. Whatever happens to Collins and Gardner, their fate illustrates the unenviable position Republican lawmakers are in. Both supported the president in crucial moments, including past Supreme Court nomination fights and, most recently, the Senate’s impeachment vote. Two weeks after the trial, Trump flew to Colorado for a rally, stood with Gardner, and called for his reelection. The senator, Trump said, “has been with us 100 percent.”The gratitude isn’t forever. The last vote cast is not the one that matters; it’s the next vote that risks Trump’s wrath. After Collins called on the election winner to choose the nominee, Trump appeared on Fox News and delivered a rebuke. “People are not going to take it,” he said.
theatlantic.com
Is This Really the End of Abortion?
Friday was a perfect early-autumn evening in Washington, D.C., less than 50 days away from the election. Marjorie Dannenfelser, the head of the Susan B. Anthony List, arguably the most powerful anti-abortion group in Washington, had wrapped up her day on Capitol Hill. She and her kids packed cheese and crackers and headed to the lawn outside the Supreme Court building, a majestic spot for a picnic. Dannenfelser’s phone rang—it was one of her staffers calling strangely late for a Friday. He had news.Call it coincidence. Call it fate. “I’ve literally never sat on the lawn at the Supreme Court,” Dannenfelser told me. But in the moment when she found out that the pro-life movement may be about to achieve everything activists have been working toward since 1973, when Roe v. Wade made abortion legal across the United States, Dannenfelser was literally gazing upon the institution she has worked so hard to influence. The thought of victory so close at hand “makes my heart race and my spirit soar,” she said.[Read: The pro-life movement prepares to build a post-Roe world]For feminists who believe abortion access is essential to women’s health, advancement, and self-determination, Justice Ruth Bader Ginsburg’s death was a gut punch. “Ruthie was my friend and I will miss her terribly,” Massachusetts Senator Elizabeth Warren wrote. “We will use each day to carry forward her legacy,” tweeted Ria Tabacco Mar, along with a broken-heart emoji; Ginsburg founded the group Mar leads, the ACLU’s Women’s Rights Project. Rebecca Traister, the New York writer who covers abortion and women’s rights, chugged wine on MSNBC. As they mourned, these women also seemed to recognize what Ginsburg’s death could mean: Even if Democrats crush Republicans in November, a 6–3 conservative Court could dismantle abortion rights.For anti-abortion activists, however, the solemnity of Ginsburg’s death was mixed with ecstasy: They believe they are about to taste victory. The next six weeks, which will almost certainly see a vicious Supreme Court confirmation battle amid the final race to Election Day, may determine the future of abortion in America for a generation. “I’m under no illusion that this isn’t the fight of our life,” Dannenfelser said.If President Donald Trump succeeds in appointing a replacement for Ginsburg, he will solidify a six-person conservative majority on the Supreme Court that could last for a decade or more. The most fundamental issue at stake is the right to abortion, which the conservative wing of the Court has been openly agitating to revisit for years. The almost universally shared goal of the anti-abortion movement is to see Roe overturned so that the question of abortion can return to the states, where voters can directly influence whether their legislatures permit or regulate the procedure. Getting to this moment, in which the conservative justices on the Court may begin fully reimagining abortion jurisprudence, took years of careful planning. “The conservative legal movement has always made sure that it’s well prepared to deal with potential vacancies on the Court,” Leonard Leo, the former executive vice president of the Federalist Society and an architect of Trump’s judicial strategy, told me. His goal for judicial appointments has not been to impose a litmus test on nominees, making them vow to overturn Roe, but “to advance a principled judicial philosophy” that tends to line up with anti-abortion views.In the years leading up to Trump’s election, pro-life political groups had a huge footprint in politics. Dannenfelser’s Susan B. Anthony List poured millions into electing strictly anti-abortion legislators to Congress, who were almost exclusively Republican; the group also attacked self-described pro-life Democratic legislators who voted for the Affordable Care Act in 2010. And the group has fully thrown its support behind Trump, vowing to help get him reelected in November. Dannenfelser calls him “the most pro-life president in history.” (Before he ran for president, Trump described himself as “very pro-choice.”) At the state level, groups such as Americans United for Life have drafted model legislation imposing incremental limits on abortion, teeing up the legal fights they hope will eventually lead to the end of Roe.[Read: Science is giving the pro-life movement a boost]Catherine Glenn Foster, Americans United for Life’s president and CEO, was driving when she heard the news of Ginsburg’s death. She sent a few frenzied texts at the first stoplight she reached, then parked near the Potomac River and worked through dinner. The moment was emotionally complicated: Like Elizabeth Warren and many others, Foster sees Ginsburg as a feminist advocate who made it possible for women like her to advance in the ranks of the legal field. “I wish we could leave it at that. Then her legacy would be something that I could just unequivocally say, ‘She’s a legend,’” Foster told me. But Ginsburg was one of the Court’s most ardent defenders of abortion rights: “Eliminating or reducing women’s reproductive choices is manifestly not a means of protecting them,” the justice wrote in one particularly cutting dissent from a 2007 conservative-majority decision, Gonzales v. Carhart, regarding the issue of so-called partial-birth abortion. To Foster, Ginsburg’s support for abortion “does tarnish her legacy.”[Read: Should a judge’s nomination be derailed by her faith?]Although Dannenfelser believes a new conservative justice will soon ascend the steps of the Supreme Court, she didn’t linger on Friday evening once she learned of Ginsburg’s death. She had recently appeared at the White House at a number of public events, and “if somebody does recognize me,” she thought, “it’s going to be a hindrance to them being able to grieve in the way that they need to grieve.” She left, and prayed alone.As night fell, hundreds of people, many of them young women in sweatshirts and face masks, made their way to the Supreme Court steps, carrying bouquets and tea lights and American flags. Thank you, their signs read. That evening, a message Ginsburg had dictated to her granddaughter Clara Spera had begun circulating: “My most fervent wish is that I will not be replaced until a new president is installed.” Presumably, Ginsburg equally hoped that her replacement will be someone who believes in the legal project that animated her life: advancing gender equality—which, in her view, had to include the right to have an abortion. Those who were there to mourn, not just Ginsburg but the vision of America that she stood for, were mostly solemn. But they also chanted: Honor her wish.
theatlantic.com