Democrats Shift to Seize on Supreme Court as 2020 Campaign Issue

(Bloomberg) -- Democrats are attempting to turn the Supreme Court into a campaign issue as they confront President Donald Trump’s success at reshaping the federal judiciary with young, conservative judges and the prospect that abortion rights are close to being eliminated.

It’s a shift after decades of GOP candidates rallying their voters with promises to reshape the courts in a backlash to Warren Court rulings of the 1960s, and Roe v. Wade in 1973, the landmark abortion-rights ruling. That dynamic lasted through the 2016 election, when Trump won over skeptical evangelicals by vowing to pick conservative justices who would allow states to outlaw abortion.

The 2020 Democratic presidential contenders are increasingly bringing up the the courts when addressing voters. They’re egged on by activists still furious about Senate Majority Leader Mitch McConnell’s refusal to let President Barack Obama fill an open Supreme Court seat in 2016 after the death of Justice Antonin Scalia. That enabled Trump to solidify a 5-4 conservative majority.

Democrats Shift to Seize on Supreme Court as 2020 Campaign Issue

Focus on the courts was intensified with enactment of a law in Alabama this week that makes performing an abortion a felony in almost all cases. Alabama Governor Kay Ivey said the measure was aimed at forcing the Supreme Court to reconsider abortion rights. Legislatures in other Republican-dominated states have passed or are considering abortion restrictions as conservatives see their first viable chance in a generation to overturn or sharply curtail Roe v. Wade.

Alabama Law

The Alabama law was roundly denounced by the Democratic 2020 candidates. In an email to supporters Thursday, Senator Elizabeth Warren of Massachusetts warned that “a woman’s constitutional right to abortion is under attack,” and “we’re going to fight this with everything we’ve got.”

At a town hall Tuesday in Nashua, New Hampshire, California Senator Kamala Harris was confronted by a man who said Republicans “stole a Supreme Court nominee” by refusing to allow a vote on Merrick Garland during the last 10 months of Obama’s presidency.

Democrats Shift to Seize on Supreme Court as 2020 Campaign Issue

Harris said that if she’s elected and nominates a Supreme Court nominee, respect for the precedent of Roe v. Wade would be “a very significant factor.” Kirsten Gillibrand, the New York senator who’s struggling to gain traction in the nomination contest, vowed to “only nominate judges who will uphold Roe v. Wade.”

Restructuring Court

Warren, Harris, Gillibrand and Senator Cory Booker of New Jersey as well as Beto O’Rourke and Pete Buttigieg also have indicated willingness to consider restructuring the Supreme Court as a remedy to its conservative tilt, including adding adding seats or limiting the terms of justices.

The candidates are all getting a push from some liberal activists who fault previous Democratic nominees, including Obama and Hillary Clinton, for not placing enough emphasis on the courts as election issue.

“It was a huge mistake on the part of the candidates in the primary and then Hillary Clinton in the general election not to talk about the courts” in 2016, said Caroline Fredrickson of the American Constitution Society, a progressive group. “She didn’t talk about what her court would look like. Donald Trump was waving his list around and saying ‘Here’s who I’d nominate, and they’ll overturn Roe.’ We had nothing to organize around.”

In 2020, “It’s definitely become a much stronger issue for progressives,” she said.

Looming Rulings

Adding to the urgency for Democratic candidates is that the Supreme Court could rule on cases involving the Affordable Care Act, immigration and gay rights -- central issues for the party -- in the middle of the presidential campaign next year.

“Next year’s going to be an apocalyptic term,” said Brian Fallon, who runs the progressive judicial group Demand Justice.

Fallon, the press secretary for Clinton’s campaign in 2016, said he expects Justice Brett Kavanaugh, who was confirmed after a contentious confirmation hearing, will cast the deciding vote on “bitter, acrimonious issues that’ll reopen the wound” for Democrats when it comes to the courts.

The Supreme Court isn’t the only judicial issue for both parties. The Republican-controlled Senate confirmed Trump’s 107th federal judge this week, an extraordinary pace. Most are in their 40s or 50s and picked with help from the Federalist Society, a group of conservative judicial advocates who want to sharply curtail federal authority.

Central Issue

“There are plenty of evangelicals who would basically say, back during the 2016 campaign, that it’s all about the court,” said Republican pollster Whit Ayres. “The fact that Donald was willing to commit to nominating Supreme Court justices from a list compiled by the Federalist Society was an absolutely critical component of his victory.”

Ayres said the courts will be central to Trump’s hopes of mobilizing the right again in 2020.

Republicans also use the courts to motivate voters in Senate races.

Conservatives “draw a straight line from GOP senators to GOP judges,” said Matt Gorman, a Republican consultant who worked on Jeb Bush’s 2016 campaign and the party’s House election arm in 2018. “The left doesn’t do that.”

Groups like Demand Justice are trying to change that, pushing Senate Democrats to oppose Trump’s court picks and releasing report cards assessing their records. The organization sought to send a message to the 2020 field by launched an ad in Hew Hampshire last week to highlight the “F” grade on opposing Trump’s judges to Colorado Senator Michael Bennet, who announced his presidential campaign at the beginning of the month.

“We don’t have as much muscle memory as the other side does in terms of instinctively remembering the courts in election time,” Fallon said. “We have a ways to go before we match that intensity level, but we’re in a vastly better position.”

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