Playing Smartball in the Confirmation Battle for the Ginsburg Seat

By Bruce N. Gyory | September 23, 2020

The handwringing over the battle to confirm a replacement for Justice Ginsburg’s seat on the Supreme court has already commenced. Too many Democratic leaning pundits have begun to fall prey to what David Plouffe once referred to as a Democratic reflex for “bedwetting”, around the refrain that the Democrats have no cards to play. I for one think the battle to prevent the McConnell led Republican Senate, from stealing a second seat on the Supreme Court, is not a lost cause. The battle to protect both consistent de facto rules for when to advance a vacant Supreme Court seat in an election year, while preserving the Constitutional prerogative for the consent of the governed in terms of who nominates justices to the Supreme Court, deserves a strategy worthy of the woman who held this seat so ably and for so long, Justice Ruth Bader Ginsburg.

The so-called “Notorious RBG”, would not throw her hands up in defeat at the prospect of a tough fight against long odds. Instead, she would advance a realistic legal strategy worthy of the stakes, carefully calculated to win the day. In a word, she would play what we might call smartball (think calculating hardball). This week we should mourn her passing, precisely because we should celebrate her life’s work. But by next week we must be ready to advance the political equivalent of her litigation skills in court. Let me offer some recommendations on the basis of fairness.

Let me begin by acknowledging a simple fact, Trump’s Republicans believe pushing through his nominee to replace Ginsburg on the Supreme Court, is their ticket to transforming this campaign into choice election, rather than where it stands now, a referendum on President Trump, that he is losing. Derivatively, McConnell hopes to use that dynamic to narrowly hold Republican control of the Senate. Nor do I dispute that this GOP strategy could become a de facto replay of 2018, when the fallout from the Kavanaugh confirmation, helped the Democrats in the House races, particularly in the suburbs, but wound up helping the Republicans carry Senate seats in Ruby Red states. This year the Republicans want this confirmation fight to rally their cause in the Electoral College for Trump and hope that it provides just enough fuel in the Senate races to allow the GOP to hold onto their Senate majority.

But contrary to those who say McConnell is holding all the cards, I think the Democrats have some cards to play in this card game even as they do not hold the trump cards, literally or figuratively. Here is how I would advise the Democrats to proceed. Play the cards you have, geared to generating the voters putting justified fear into the Republicans pre-election, in order to prevent a confirmation vote before November 3rd. Then use the prospect of the voter’s wrath in conjunction with a trick or two from Henry Clay’s Senate, to deter a confirmation vote in a lame duck session. My recommendation is for a 6 point tactical approach to implement this strategy. I see no downside to advancing this publicly, for the consideration of and refinement from Democratic leaders from the Biden campaign on to Schumer and his conference.  Let Trump and McConnell and their troops see that this is what could lie in store from a hypocritical rush to judgment. Most of all, let’s let voters know that if they choose to make their voices heard, they can have a determinative impact, which would in fact, be the ultimate tribute to the legacy of Ruth Bader Ginsburg.

One, Democrats should define the issue so as to persuade Independents and Never Trump Republicans that ramming this nomination through is a travesty, while generating the Democratic base vote. This goes to why Biden is ahead and has been so consistently by 6-9 percent in most respected polling data since mid- Summer. The latest being the NBC News/WSJ poll released this past Sunday, showing Biden up by 51-43 percent among registered voters and by 51-45 percent in the battleground states. The polling data has been remarkably consistent since the Fall of 2018: if the Democratic candidates carry Democrats by 93 percent plus margins, while Republican candidates carry Republicans by 88 percent plus, but the Democrats carry Independents anything close to double digits then they win. That basic equation of political algebra is what allowed the Democrats to win 40 seats in the House in 2018 and it is why Biden’s lead in the polling data, has been an enduring one as Summer turns to Fall. Consequently, bolstering that political arithmetic should be the essence of beating back the Republicans in this fight for Ginsburg’s seat.

So, in the Senate races target those Republican Senators who said on the record in the past, that they would not advance a nominee for a Supreme Court vacancy close to the election (adhering to their block on the Garland nomination in 2016), like Graham in South Carolina, Daines in Montana, Collins in Maine and Gardner in Colorado. The Democrats should make the issue a simple question for voters: if you can’t trust these GOP Senators to keep their word on this Supreme court question, how can you trust what they say on anything else? That pragmatic non-ideological approach, might just pin down these vulnerable Senators so that they feel that they can’t win if they cast vote for Ginsburg’s replacement pre-election. Not to mention that if you pressure Grassley, who is not up for re-election in Iowa on this point, it can help box in Ernst who is in a tight contest this year. The goal of this approach is to make it impossible for Senators like Graham, McSally, Ernst, Daines, Collins and Gardner to have any chance of winning their re-elections if they were to vote yes before November 3rd.

Two, this is a game of locking in 4 no votes from Republicans.  Democrats should slow down the rush to vote pre-election and that means keeping Murkowski and Collins in the no vote category, while adding several Republicans to that category first against a pre-election vote. Gardner in Colorado should be the first priority, given his vulnerability and the political demographics of Colorado. But the Democrats should try to add others to that list so that no one Senator is the fourth vote. All of this pressure could make it easier for Romney to become a certain opponent to a quick pitch confirmation vote. Let there be no doubt, with the exception of Murkowski and Collins, the Democrats cannot expect shame arguing against hypocrisy to win the day, only the cold hard likelihood of losing power will thwart McConnell and the vast bulk of his conference from doing Trump’s bidding. So, at every turn, the Democrats should seek to lock in first four Senators unwilling to vote to confirm pre-election and then try to expand the list according to the cold hard steel of political survival.

The Democrats need not despair over Romney announcing that he is in favor of a vote and will cast his confirmation vote based upon the nominee’s credentials. Instead, Democrats should redouble their efforts at the hearings to persuade Romney to cast a no vote.

The effort to earn Romney’s opposition should supplement the larger effort to render a pre-election vote a fatal mistake for a bushel basket full of marginal Republicans seeking re-election this November. Playing for a delay in the confirmation vote until after the election is now a distinct long shot, but it is not a waste of time. The success of this effort will go against the grain for Republicans, but if they fear the electoral result they may be forced to push back this confirmation vote. Only the voters not Democratic Senators can deliver this result.

Three, to avoid the perception among Republican Senators that this battle will be the Kavanaugh Confirmation redux, allowing the abortion issue to lock in enough Republican states for them to hold the majority, the Democrats would be wise to expand the lens through which voters view this fight beyond abortion. First, by making it about whether Roe v. Wade will stand. In terms of public opinion, the nation is clearly, but rather narrowly, pro-choice. But when the issue is whether Roe v. Wade stands, public support is much higher. Common sense tells us that many voters who are not pro-abortion themselves, are opposed to dictating their belief as the law of the land. Those voters are quite prevalent in the nation’s suburbs amongst highly educated moderate Republicans and independents and blue collar single women. No Republican can win outside the deep South without carrying those voters comfortably. Democrats would be wise to taper the discussion of this issue accordingly. Meanwhile, Democrats should not stop there.  The messaging on this conformation battle should address a big tent coalition stretching from the core of the Democratic base through Independents on to Never Trump Republicans. Therefore, it would be smart to expand the messaging from protecting voting rights and worker rights, through to protecting Roe v. Wade and the environment and on to preserving health care coverage for those with pre-existing conditions. Building a formidable coalition to project opposition to this nomination, through a broad rather than a narrow issue lens should become tactical priority.

The Democrats should not assume that the presidential race remains transfixed on this confirmation fight. Since the Republican convention, the nation’s attention has shifted spinning from violence attending racial justice protests, to Trump’s slander against veterans, back to the Covid pandemic off of the Woodward tapes and now to the Ginsburg vacancy. Who knows what future issues and events jump to the fore and when. Nevertheless, that big tent messaging approach delineated above, is perfect fodder for a microtargeted voter outreach in Democratic campaigns for the presidency and the swing Senate races.

Four, Trump’s Republicans seem quite overconfident regarding this court battle. But they may be missing the passion factor women voters feel towards Ruth Bader Ginsburg. In 2016, there was a generation gap regarding female enthusiasm towards Hillary Clinton’s candidacy. But the reaction of women across the generational divide to Ginsburg’s passing has been profound and almost reverential in its heartfelt grief and sense of deep loss.  We all saw the spontaneous gatherings at court houses and we all heard the tears of wives, sisters and daughters at the news of her passing. Whether it is older women lovingly calling her Ruthie, or younger women reveling in her being the Notorious RBG, are Trump’s Republicans so sure that RBG’s memory will not be the fuel for an even more explosive turnout against Trump and down ballot Republicans from female professionals, across the generational divides? Are Trump and McConnell so confident that the explosion of small dollar fundraising for Democrats since her tragic passing, will not morph into an explosion in coattail laden turnout from women voters? The Democrats would be wise to harness all that raw political power, focusing it on the metro clusters of states not always associated with feminist voting power: Florida, North Carolina, South Carolina, Georgia, Colorado and Arizona as well as Maine.

Five, there will almost assuredly be pre-election Senate Judiciary Committee hearings on this nomination, even if the Democrats can deter a pre-election vote before the full Senate. The Democratic Senators at those hearings must win those hearings, fortifying the political messaging outlined above. They can’t afford to waste their precious time, they must question with clarity and precision at these hearings, to expose weaknesses in the nominee’s responses.  I would not be surprised if the Republicans scheduled the hearings right around the Vice Presidential debate in the hopes of silencing Senator Kamala Harris, the Democrats’ Vice Presidential nominee and probably their most effective interlocutor at past confirmation hearings. If Trump’s nominee were to slip and fall at these hearings that could slow the nomination down. A poorly performing nominee at hearings is the potential weak link in the cards McConnell is dealing. Unforced errors don’t just happen and we can expect this nominee to be a skilled legal advocate. But even among the smartest lawyers there is a clear difference between the poor projection skills of a Bork versus the stellar testimony of a Roberts. These hearings will loom large if the Democrats are to succeed in blocking this nomination.

Six, then the Democrats need to win a solid electoral victory, winning not only the White House but a clear majority in the Senate.  If Trump and/or the GOP majority in the Senate is returned to power by voters there will be a vote confirming this nominee and it will succeed. Hopefully, control of the Senate will not hinge upon a victory in the Georgia run-off for the seat now held by Kelly Loeffler. But even if the Democrats have won a clear majority in the Senate and that is known before Thanksgiving, there will be a real threat regarding this nominee to the Supreme Court. The GOP’s weakness if they lost the White House and both houses of Congress, will bring their base to a point of desperation, demanding a lame duck vote. In effect, the Federalist Society, will be back to the Federalist strategy in Jefferson and Madison’s time, namely expecting the federal courts to offset their losses with voters. At that point it will still come down to 4 votes from Republicans. Presumably, Collins and Murkowski would hold.  By then perhaps Romney’s vote can be turned into a no, based upon the hearings eroding the credentials criteria he has advanced.  But any Republican Senator hoping for a political comeback in the future, would not vote no, even if they had pleaded with McConnell to not have that vote come before November 3rd. So, Senators like Gardner, Daines and Ernst would be of no help under this scenario, even if they lost their elections. The remedy is to generate onslaught of media blowback and constituent protest against thwarting the public will.  The most successful targets would be those Senators retiring or not seeking re-election on 2022 or 2024. Several of them have changed their mind once on this question of whether to advance a new nominee so close to an election. Perhaps they would reverse themselves again.

But I do not believe in ponies for Christmas. Nor do I think threats of court packing would prove persuasive, plus it would set a horrible precedent for when the Democrats lost the White House and the Senate. There is a reason that court packing was FDR’s biggest political blunder. But if reason and common sense will not prevail, then there is one last card in the deck that President -elect Biden could play. It is a card from Henry Clay’s Senate. Perhaps a Republican Senator or two would not want not to cross the Rubicon in contravention of the consent of the governed. This Senator(s) might just want to leave the toxic swamp and prefer to save his or her party from what would be an indelible stain in flouting the will of voters who decided to go in a different direction with this question of Ginsburg’s successor front and center in the voter’s minds. In addition, voting no could forestall the Democrat’s progressive wing from advancing some combination of court packing and/or impeachment.  In brief, an ambassadorial or Cabinet appointment(s) for a Republican Senator or two, could replace toxicity with a chance for a fresh start, by securing a fourth vote to deny this nominee confirmation. I am not suggesting either an illegal or a crass trade, but the old law of anticipated reaction.  There is a long tradition of incoming Presidents appointing members of the other party from Congress to their administration. Plus, this card could be played to convince McConnell not to bring a vote to the floor that he would lose.

Trump has pushed the flouting of important and principled norms of proper conduct beyond recognition on many fronts, from accepting help from Putin four years ago and doing nothing to reject it this year, to his impeachment for seeking a “favor” from Ukraine and many other lesser imprudent actions and gestures. Worst of all from the perspective of Madison’s checks and balances, McConnell’s leadership of the Senate has indulged President Trump at every major turn, refusing to serve as check and a balance. Some will call this version of smartball, that I am advancing, old fashioned political hardball and I will accept that assessment. I would rather the Democrats play such hardball openly and honestly than delve into other responses which do not solve the problem at hand, but only increase the likelihood of a future decent into norms devoid of fairness and constitutional prudence.  Here is to hoping that the Democrats have the skill and discipline to generate righteous anger from voters into a productive use of hardball, in defense of reestablishing pathways back to fair and sound norms in accord with constitutional principles.

Bruce Gyory is a Democratic political strategist and an adjunct professor of political science at SUNY Albany.