The shock of a sudden new vacancy on the US supreme court has rippled out to some of the most contentious Senate races in the final weeks before the 3 November elections, throwing the vital issue of who might win control of the body into confusion.
The recent death of Justice Ruth Bader Ginsburg while Republicans control the Senate and the White House virtually ensures that her replacement will be conservative, swinging the court into a 6-3 conservative majority.
Donald Trump and Republicans have indicated they plan to move swiftly to install a new justice, meaning the vetting period and confirmation battle will happen during the days when incumbent senators and their challengers are making their final pitches to voters.
As a result, the dynamic in key races has shifted to varying degrees across the country, from Maine to Colorado. For Republicans, the battle for the Senate is an essential bid to cling to a hugely powerful body; for Democrats, wresting control of the chamber would be a hugely welcome – if previously unexpected – triumph.
In some races, the supreme court vacancy offers a chance for Democrats to rally their bases in states that increasingly lean left. In others, the vacancy gives Republican candidates the opportunity to remind voters who want the high court to tackle cases on abortion, deregulation, and overturning healthcare reform that senators can play a role.
“It should help red state enthusiasm in that it’ll remind people what’s at stake in this election,” said the Republican strategist Cam Savage, who added: “There will be places in the country where it benefits the Democrats.”
Strategists and officials for both parties stress the campaign landscape is not yet clear.
Trump has not announced a nominee and only in the past few days have swing senators indicated whether they support quickly going through the process of confirmation.
In deciding whether to confirm a justice before the election or after, senators have signaled they are taking their own electoral prospects into account.
In Democratic-leaning Maine, where Senator Susan Collins is trailing her Democratic challenger, Sara Gideon, Collins has split with most of her Republican colleagues and said she would hold off on confirming a justice until after the November election.
In Republican-leaning South Carolina, Senator Lindsey Graham has said his chamber should move “expeditiously” to confirm a new justice. That is despite Graham saying in 2016 that if there were a vacancy this close to a presidential election, the vacancy should be filled after the election, regardless of which party is in power. The Democrat Jamie Harrison, who polls show is trailing Graham by single digits, has used Graham’s about-face on confirming a justice as part of his overarching argument that Graham is a hypocrite.
In red-leaning states such as Kansas or Iowa, though, Republicans expect the vacancy to drive conservatives, even ones dissatisfied with Trump, to come out and vote. In Senate races where Democrats have the upper hand, top Senate Republicans think the vacancy will at least tighten the margins.
Some candidates have framed the vacancy in terms of specific issues such as healthcare – which Democrats see as one of the most effective policy points to discuss on the campaign trail.
“This is a decision that will impact Arizonans, especially with an upcoming case about healthcare and protections for pre-existing conditions,” the Democrat Mark Kelly, who is running for Senate in Arizona, said in a statement on Saturday. “Arizonans will begin casting their ballots in a few weeks, and I believe the people elected to the presidency and Senate in November should fill this vacancy.”
“In states like Arizona and North Carolina, a polarized fight helps tighten the margin down-ballot and ties it closer to the top of the ticket,” a Senate Republican official said.
Some of the most endangered senators in the country, though, have stuck with their party on the supreme court fight.
In Democratic-leaning Colorado, Senator Cory Gardner joined with other Republicans to support confirming a Trump nominee. In conservative Alabama, Senator Doug Jones has echoed Democratic calls for the winner of the 3 November presidential election to pick the next justice.
It’s still early, though, and some of the major national entities that usually work to boost Senate candidates are waiting for more polling on a new justice before diving into the fray.
Democrats concede that stopping Republicans from installing a new justice is almost impossible. But recent court battles have shown that it can still be a fundraising bonanza for them. Democrats have enjoyed competitive fundraising in statewide elections this cycle. The veteran Democratic ad-maker Martha McKenna suggested that the fundraising rush would only increase during a supreme court nomination fight.
“The only thing you can do to help is money – because of Covid – and that is going to make a difference, I think,” McKenna said. “I really do think fully funded races in places like Kansas and South Carolina – it’s gonna matter.”
The Democratic Ohio senator Sherrod Brown, who is not up for re-election, predicted that quickly confirming a new justice would drive key constituents away from the Republican party.
“I think what [Senate majority leader Mitch] McConnell’s doing is especially gonna turn off young voters who care about a woman’s right to choose, who care about the environment, who care about climate and the future of this country,” Brown said during a press gaggle.
Brown added: “Young voters know that and I think that’s why McConnell’s decision in the end is probably going to hurt his party.”
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