The sudden political fight over an open seat on the U.S. Supreme Court quickly emerged Saturday as a new defining issue in a presidential election already roiled by a year of cascading national crises, as both Democrats and Republicans in Pennsylvania said it would inspire their voters to turn out in force.
“If this doesn’t motivate Democrats, nothing will,” U.S. Rep. Mary Gay Scanlon, a Democrat who represents a suburban Philadelphia district, said the day after Justice Ruth Bader Ginsburg died at 87.
But as President Donald Trump called on the Senate to fill the vacancy “without delay," the political implications for a campaign in which some voting has already begun remained to be seen in the days ahead. Republicans have historically seen more success than Democrats when it comes to mobilizing voters around judicial appointments. And the court fight gives Trump an issue that could prove a potent diversion from his mishandling of the coronavirus pandemic — which has hobbled him politically and left him facing a consistent deficit in polls against Democrat Joe Biden.
“I know there are folks who think that a fight right now would benefit the president. I’m not gonna argue with them," said Charlie Gerow, a Harrisburg-based Republican strategist. “He tends to win fights. While it will energize both bases, our base reacts better and mobilizes better.”
At least privately, some Democrats in the state agreed that a titanic election-year struggle over the high court carries some risk for their party. The new battle in Washington began just as it was becoming clear that Trump’s attempts to refocus the campaign on civil unrest in American cities were gaining little traction — and as the U.S. death toll from the coronavirus approached 200,000.
“If the last 40 days is a culture war about who’s on the Supreme Court, that benefits Trump,” a top adviser to a Pennsylvania congressional Democrat said. “To the extent people are talking more about this vacancy than the failure of the administration to appropriately respond to COVID, that helps Trump.”
Both Trump and Sen. Mitch McConnell, the Republican majority leader, made clear over the weekend that they would keep the court fight center stage. Trump, who had sought to refocus conservatives on his record of judicial appointments by releasing a list of potential new nominees even before Ginsburg’s death, said he would announce a pick next week. McConnell said that nominee will receive a vote on the Senate floor.
That marked a brazen reversal from four years ago, when McConnell refused to allow a vote on President Barack Obama’s Supreme Court pick, saying Americans should first make their voices heard in an election that was eight months away (far more than the 44 days left on the clock now).
Neither Trump nor McConnell said whether a vote would come before or after the Nov. 3 election — holding out the possibility that they could delay confirmation until after, sparing vulnerable Republicans a difficult vote until then and effectively putting Trump’s Supreme Court nominee on the ballot with him to motivate conservatives.
The stakes could hardly be higher: Trump won Pennsylvania in 2016 by only 44,000 votes, or 0.7%, and exit polls suggest his promise to nominate a conservative jurist to fill the seat Republicans held open that year was a key motivator for conservative voters. Biden has held a steady but hardly insurmountable lead in the state. And strategists in both parties, as well as independent analysts, increasingly see Pennsylvania as perhaps the most critical state in determining who wins the White House.
U.S. Rep. Madeleine Dean, who represents another suburban Philadelphia district, called McConnell’s push for a confirmation vote almost immediately after Ginsburg’s death Friday “grotesque.”
“It just hits me hard,” Dean said. “It hits me hard for my coworkers who are younger and my daughters in-law, in particular, my two granddaughters. There’s such a continuum about who she was, the impact she had. ... So McConnell making a clearly political statement within the hour that we learned of this giant’s death — it’s grotesque.”
In Pennsylvania, the focus will be squarely on Sen. Pat Toomey, who joined his fellow Republicans in blocking Obama’s 2016 nomination of Judge Merrick Garland.
“With the U.S. Supreme Court’s balance at stake, and with a presidential election fewer than eight months away, it is wise to give the American people a more direct voice in the selection and confirmation of the next justice,” Toomey said that March.
Toomey, who campaigned for reelection four years ago as an “independent voice” and didn’t disclose that he would vote for Trump until hours before polls closed, will face immense pressure from Democrats and progressive activists to stick to his 2016 stance and oppose filling Ginsburg’s seat until next year.
But Toomey will also likely have to face Republican primary voters in two years, whether he seeks reelection in 2022 or runs for governor that year, a move he is widely seen as considering. Defying Trump on a Supreme Court nomination could be crippling in a GOP primary.
In a statement Saturday, Toomey called Ginsburg a “trailblazer in the legal profession," who “left an indelible mark that will resonate for generations.”
Toomey did not address whether he would support filling her seat before the election. And he declined an interview request.
Sen. Bob Casey (D., Pa,) expressed frustration that Republicans are playing “rhetorical gymnastics” to justify backing a Trump court pick now after blocking Obama’s in 2016. He said he hoped Ginsburg’s death could motivate voters by shifting focus to critical policy matters before the court.
“I think a lot of Americans...are not aware the Supreme Court has a case in front of it on healthcare that could destroy the protections for preexisting conditions that were hard won over the last decade,” Casey said, referring to the Trump administration’s push for the court to strike down the Affordable Care Act.
U.S. Rep. Conor Lamb, a Democrat who represents a Trump-friendly district in the Pittsburgh suburbs, noted that Senate Republicans still haven’t passed a new coronavirus economic relief measure.
“We’re in the middle of a pandemic," he said. "And we spent all last week in Washington, D.C., trying to get the Senate to hold a vote on a rescue package, which they refused to do because they want to go home and campaign. And so it’s even more strange that they would be talking about mobilizing the entire government to hold a confirmation hearing when they’re unwilling to do anything on the pandemic.”
Vashti Bandy, a leader of Tuesdays with Toomey, a group that has challenged the senator in protests and letter-writing campaigns, said Ginsburg’s death and the immediate Republican pledge to vote on a successor was demoralizing.
“This was another horrible blow," Bandy said. "This whole year has been an unmitigated, rolling down the hill, s—storm.”
Bandy said her group is organizing with other progressives to pressure Toomey to stand by his 2016 position. But she’s not optimistic.
“We recognize we may not be successful," she said. "We also recognize the absolute most important thing we can do is get out the vote and flip the Senate.”
Rob Gleason, a former Pennsylvania GOP chairman, defended the push to fill the seat and said he hopes Toomey backs whoever Trump nominates.
“We’re in control," Gleason said. “He’s the president and we have the Senate. If it was a Democratic president and a Democratic Senate, they would do the same thing.”
Two vulnerable Senate Republicans up for reelection signaled over the weekend that they wouldn’t support a confirmation vote before the next presidential inauguration in January. That would mean Trump and McConnell could only afford to lose one more Republican, with Vice President Mike Pence casting a potential tie-breaking vote.
Scanlon, whose district includes all of Delaware County, called this a moment for Democrats to mobilize.
“I think we do have to say to the American people, ‘what do you want America to look like?’" she said. "We are talking about one vote away from a lot of things. Do we want government to tell women what they can do with their bodies? Do we want gay marriage to be illegal again? Do we want decisions on all of this to be made by the most radical right-wing court we’ve ever had?”
In interviews Saturday, voters across Pennsylvania took stock of Ginsburg’s death and its implications.
John and Lisa Jackson, both Trump supporters from the Pittsburgh suburbs, said the president should replace Ginsburg “immediately."
“Standing up for the constitution is what we want,” Lisa Jackson said as she and her husband got ready to watch their granddaughter’s soccer game in McCandless. “We’re losing America. We can’t have that happen.”
Asked about Democratic charges of hypocrisy John Jackson said both sides are hypocrites, and in any case, “I don’t really care.”
Chris Dugan, 37, a Democrat from Beaver, about 30 miles north of Pittsburgh, said Ginsburg’s passing felt like a “gut punch.”
Speaking beside his Volkswagen SUV as he geared up to promote Biden’s candidacy, he said he expected Trump and McConnell to “ram through” a nominee before Election Day.
“Any ounce of decency they had at this point is gone," he said. “The next 45 days were going to be ugly. They’re going to be even uglier now.”
In the Philadelphia suburb of Narberth, John Familetti, 65, an independent who plans to vote for Biden, said the Senate shouldn’t vote on a nominee before the election, but doubted that they would wait.
“They’d be very hypocritical, but it wouldn’t surprise me,” he said.
Kim Shore of Brookhaven, in Delaware County, said she cried Friday night when she heard about Ginsburg’s death. But sadness has shifted to fear of what a more conservative court might mean.
“I think this is very scary for a lot of people, myself included," she said. "Thinking about what the future may hold.”
Susan Miner, of Downingtown, said the group of progressive women she organizes was already extremely motivated to drive voter turnout.
“We’ve all been sharing just tears and sympathy and support for everyone’s grief over her death,” she said. “People are saying, ‘OK, I didn’t think I could even be more motivated, but I am more motivated.’”
“We need to do this for her,” Miner added. “We need to carry on.”