The Supreme Risk of this Court Pick

CHARLESTON, W. Va. – President Trump gets three Supreme Court picks in just his first term in office. That’s rare. You’d have to go back to Ronald Reagan to find a president with three successful picks, but that was over two-terms. But this third choice, of Judge Amy Coney Barrett, is not without significant political risk. Let’s “brunch” on that this week.

“The Timing is Everything” – Holding confirmation hearings and a final vote on the nomination before Election Day is proving to be highly controversial. And, while Barrett has the votes for confirmation, the overarching strategy could backfire. What if it angers enough Democrats and independents, that they turn out in droves and win the White House and maybe even take control of the U.S. Senate? Both are real possibilities, even though the high court would have a solid 6-3 conservative majority. The prospects of gutting Obamacare, or overturning Roe v. Wade, are wedge issues that could increase voter turnout on the Democrat side.

“Who’s Next?” – So, Trump could lose his job over this, but his impact on Supreme Court decisions could last 30 plus years. Judge Barrett is just 48 years old. Trump’s other two picks, Justices Gorsuch and Kavanaugh, are 53 and 55, respectively. In good health, they each could serve 30 years. The two Obama appointees, Justices Kagan and Sotomayor, are 60 and 66. The senior Republican picks, Thomas and Alito, are 72 and 70. Given the longevity of court members, Stephen Breyer, the 82-year old appointed by Bill Clinton, is likely the next to retire. My point is, after much recent turnover, this court is likely to stay the same for good while. If Joe Biden wins the White House, he may only get to replace Breyer.

“Did Trump Bet on the Wrong Horse?” – You hate to handicap an election over a Supreme Court pick, but the Barrett pick is not without other potential consequences. I was certain Trump would pick Judge Barbara Lagoa, a Cuban American from Florida. It’s no secret that Trump is struggling in the polls in states with significant Hispanic populations, including Florida, Arizona, Texas and North Carolina. Those are all states Trump must win to be reelected. If he loses, the exit polling of Hispanic voters may hold the clues.

“The Senate Strategy” – Republicans currently hold a 53 to 47 majority in the Senate and have Vice President Mike Pence to break votes that are tied. So far, only Senators Susan Collins (R) Maine and Lisa Murkowski (R) Alaska have indicated they may vote no on Barrett. Two other potential “no” voters were Senators Mitt Romney (R) Utah and Cory Gardner (R) Colorado, now say they would support a confirmation vote. Collins, who is in a tough reelection fight in Maine, probably must vote no to save her seat. Barrett looks to be confirmed, narrowly.

“Senate Strategy II” – So while Republicans appear to win the day with a new Supreme Court pick, they might lose control of the Senate by rushing this through. Democrats need a net gain of four seats to win the Senate outright, but they only need to win three Senate seats if Biden wins the White House, as VP Kamala Harris would be the tiebreaking vote on the Senate. Even without the Supreme Court fight, Republicans were already in serious danger of losing Senate seats in Maine, Colorado, Arizona, North Carolina and Iowa. The latest Real Clear Politics composite poll has Democrats retaking the Senate by a slim 51-49 margin.

“A More Supreme Court?” – If Democrats keep the House and take the White House and Senate, watch out for discussion of Supreme Court expansion. Many people mistakenly believe the size of the Supreme Court is set by the Constitution, but it is not. Congress, with presidential support, has the authority to set the number of court seats. Under George Washington, and for many years after, the court had six justices. It was later shrunk to five, then expanded to seven and finally nine. The last person who tried to expand the Supreme Court was President Franklin Roosevelt, who wanted to establish 15 seats in 1937, but was rebuffed by Congress as an attempt at “court-packing.” But Democrats, even if they control everything else in Washington, may grow frustrated with a 6-3 conservative court that could be around a long time. Keep an eye on possible court expansion.

“2016 versus 2020” – Much has been made about this pick versus the pick to replace Justice Antonin Scalia who died in 2016. President Obama was in the White House then, but Republicans controlled the Senate. Majority Leader Mitch McConnell said back then, "Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court." The only difference between then and now is that this year the GOP controls the White House and the Senate, whereas in 2016 government was divided. Today, many Democrats make the same argument McConnell made four years ago.

“What Would Biden Do?” – Given the scenario in 2016, many (including me) are wondering if Joe Biden will re-nominate Judge Merrick Garland, whom Obama selected in 2016, but never got a hearing. If Biden wins the White House, there will be tremendous pressure to name a woman as his first pick, but a lot of Democrats think Biden should give Garland a second chance.

“What History Tells Us” – What’s the old line you hear from financial advisors on the stock market? “Past performance is not an indictor of future behavior!” With that in mind, it’s interesting to note that four other times in U.S. history, there was an opening on the Supreme Court between July 1 and Election Day. In three of those cases Presidents John Quincy Adams, Abraham Lincoln and Dwight Eisenhower, chose not to make a high court nomination. Only President Millard Fillmore made a pick, but his nominee was rejected by the Senate.

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Mark Curtis, Ed.D., is Chief Political Reporter for the six Nexstar Media TV stations serving West Virginia, its five neighboring states and most of the Washington, D.C. media market. He is a National Contributing Political Writer for The White House Patch at www.Patch.com.

© 2020, Mark Curtis Media, LLC

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