Why the Supreme Court Fight Is a Tightrope for Trump in November

WASHINGTON — As President Donald Trump moves ahead with his Supreme Court nominee and Senate Republicans prepare to hold lightning-quick confirmation hearings before the election, they are making risky calculations aimed at navigating difficult political straits with less than 40 days left in the campaign.

In order to achieve a new 6-3 conservative majority on the court, Republicans are poised to defy a clear majority of voters who have indicated in polls that they want the winner of the election to pick a nominee for Justice Ruth Bader Ginsburg’s seat. They are even willing to energize Democratic turnout in the short run by elevating issues like abortion if it means achieving the long-term goal of tilting the court further to the right.

That gamble would almost certainly play out with Trump’s intended pick, Judge Amy Coney Barrett, a favorite of social conservatives whom he is poised to formally nominate despite the pleas of some of his election-minded advisers that he tap Judge Barbara Lagoa, a Florida Latina.

Now, though, his advisers and party lawmakers are placing wagers on a Barrett pick that are based on hope as much as strategy as Trump trails in battleground states and the Senate GOP majority appears increasingly precarious.

They believe a partisan fight over the court offers them at least a chance to steer the debate away from political danger zones like the president’s handling of a virus that has claimed more than 200,000 American lives and his unceasing rhetorical eruptions, most recently his indication that he would be unwilling to agree to a peaceful transition of power.

“Either the election can be about Trump or about COVID or about the Supreme Court,” said Sen. Lamar Alexander, the long-serving Tennessee Republican who is retiring next year. “And I think, of those three, if it’s about the Supreme Court, that traditionally has helped Republicans more.”

If Republicans are skeptical that they can retain the presidency and the Senate in any election that is a referendum on Trump’s leadership, they are betting that Democrats will botch the confirmation process with ferocious attacks that make whichever woman he picks a sympathetic figure.

On this, Republicans say, they have history on their side as they point to the bitter 2018 fight over Justice Brett Kavanaugh that resulted in the party’s adding to its Senate majority.

“It’s going to be Kavanaugh on steroids,” said Sen. John Cornyn, R-Texas.

But the bulk of those 2018 victories came in heavily red states. This fall, Republicans are again defending a seat in one of two states where they lost seats in 2018, Arizona, and others in a host of states that are Democratic-leaning or evenly divided.

What is especially striking about Trump’s calculations is that, for a president who openly uses the levers of government to advance his reelection interests, he has proved unwilling so far to seriously consider a justice who may offer him the most political help.

Members of the Florida congressional delegation as well as some of the president’s own campaign aides had nudged the president to nominate Lagoa, a Miami-born appellate court judge whose parents fled Fidel Castro’s Cuba. These Republicans had argued that Trump would lift his standing in the must-win state of Florida and in other battlegrounds with large Hispanic populations, such as Arizona, by effectively making a Latina his running mate in the final weeks of the race.

“Justice Lagoa would be a great pick,” said Sen. Rick Scott, R-Fla., noting that she was the first Cuban American to have served on the Florida Supreme Court.

Should the president substantially cut into Joe Biden’s advantage in Democrat-dominated Miami-Dade County, it would all but snuff out any chance Biden has to carry Florida.

Some Republicans believe that bypassing Lagoa, who was appointed to the federal bench with the support of 80 senators, verges on political malpractice.

“As goes Florida, so goes the nation,” said Scott Reed, the top strategist at the U.S. Chamber of Commerce. Yet even before word began to leak Friday about his selection, Trump’s senior aides had all but resigned themselves to his nominating Barrett, the former Notre Dame law professor the president put on the federal bench in 2017.

Mark Meadows, the president’s chief of staff, and the White House counsel, Pat Cipollone, were especially insistent on Barrett. Meadows had argued to Trump that Lagoa has an insufficient record on which to judge just how conservative she is, according to Republicans briefed on the conversations. At the same time, conservative interest group leaders sought to derail Lagoa by reminding the president that it was his former adversary, Jeb Bush, who first put her on the bench.

Another issue is that Trump’s instincts are still geared toward his political base, and he continues to behave like a candidate who is running in a Republican primary. When offered the choice between making broad appeals or burrowing further into his overwhelmingly white and largely male base of support, he almost always sides with his core voters.

That, more than anything, is what alarms Republicans about Barrett and gives Democrats a measure of political hope — the possibility that she will bring Trump few voters he doesn’t already have, while driving more people into Biden’s column.

“I think it’s going to increase our turnout of young women,” said Rep. Jan Schakowsky, D-Ill., who she acknowledged wanted to turn Trump out of office but were not overly enthusiastic about Biden.

The risk in forwarding Barrett is that she allows Democrats to elevate the question of legal abortion, which is broadly popular. In interviews, several Republican lawmakers from Republican-leaning states conspicuously declined to offer direct views on Roe v. Wade.

“It’s subject to the Supreme Court to determine whether it’s consistent with the Constitution and the laws,” said Sen. Thom Tillis of North Carolina, who’s locked in one of the closest races in the country. “To this point, they’ve affirmed it and reaffirmed it.” Asked if he wanted the ruling overturned, Tillis said, “I have a strong view on life,” while offering a remarkably candid dose of clarity on his strategic thinking on the issue. “My opponent wants to go to Roe v. Wade, and I then go back to him taking very radical positions on late-term abortions,” he said.

Asked if he wanted to overturn Roe, Cornyn said, “I’m pro-life, but I also understand what that would mean in terms of the country.”

Yet Republican strategists are hopeful that Democrats, furious about Sen. Mitch McConnell’s decision to push through a nominee weeks before the election, will not be able to contain their hostilities and will unwittingly help the conservative cause no matter whom the president picks.

“After Saturday, Mitch is in charge,” Reed said with evident relief about the process shifting from Trump to the long-serving Republican Senate leader.

With Barrett, Republicans are hopeful that Democrats will appear insensitive to a 48-year-old mother of seven, including a son with Down syndrome and two adopted children, and will offend Catholic voters.

“It has the capacity to be explosive,” said Josh Holmes, a longtime adviser to McConnell.

Senior Democrats are aware of the political hazards with Barrett and her biography in an election in which the Catholic vote is crucial. That’s why some have started privately agitating, as first reported by Politico, for Sen. Chuck Schumer of New York, the minority leader, to replace the 87-year-old Sen. Dianne Feinstein as the ranking Democrat on the Judiciary Committee with a younger, more aggressive lawmaker.

Some in the party, however, are comforted by the broader composition of the panel.

“I think we’ve got enough women on the Judiciary Committee who know how to handle themselves,” said Sen. Maria Cantwell, D-Wash. Democratic leaders like Biden and Schumer are trying to keep the court focused squarely on health care, believing that any discussion about future court rulings on the Affordable Care Act benefits the party, no matter how conservative or liberal the state.

A titanic clash over cultural hot buttons such as abortion rights or gun rights might ultimately be more helpful to some Senate Republicans in rallying their base in tough reelection races than in delivering additional votes to Trump.

Some of the states the president is eager to poach from Democrats, such as New Hampshire and Minnesota, or that he is straining to defend, like Michigan, tilt toward supporting abortion rights.

“New Hampshire is a pro-choice state,” said Judd Gregg, a former Republican governor and senator there. “If it becomes a major issue, especially for independent women, it will have an impact.”

But further inflaming an already polarized electorate could be enough to propel embattled senators from red-leaning states, like Lindsey Graham of South Carolina and Joni Ernst of Iowa, and even those from more moderate states with large evangelical populations, like Tillis. Of course, that’s cold comfort to GOP senators from Maine, Colorado and Arizona, states where more than half the electorate supports abortion rights, according to polling in recent years.

But for now, Republicans are happy just to be changing the subject.

“We’re going to spend the month of October talking about what Republicans and this administration have done best for last four years,” Holmes said. “These hearings are not going to be a retrospective on the pandemic or a discussion on the personalities of the candidates.”