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Judy Ford Wason Center for Public Policy

Wason Center

October 9, 2018

Democrats Are Poised to Win Upcoming Battles, But Have They Already Lost the War?

National / Issue

Authority of Law statue at the US Supreme Court

Make no mistake about it, getting Brett Kavanaugh through the confirmation process and onto the Supreme Court is a major victory for Republicans. The swearing in of Brett Kavanaugh secures for Republicans a predictable, solid conservative majority on the Court for at least the next decade. Conservative activists have been working towards this moment since they first became organized in the wake of the “Rights Revolution” ushered in by the Warren Court. For Republicans of a certain age, this moment represents the realization of a dream more than three decades in the making. Control the Supreme Court and you control the meaning of the law.  Put into context, you can see why Mitch McConnell adopted a no-holds-barred approach to the Court over the last year of the Obama presidency and through the contentious Kavanaugh confirmation, throwing out long-standing Senate norms and procedural rules like the Supreme Court filibuster, as well as the unprecedented refusal to give President Obama’s last appointment a confirmation hearing. 

Had Hillary Clinton won the 2016 election, even McConnell would have found it too much to refuse to perform the Senate’s Advice and Consent duties for 4 years. In this alternative reality, Republicans not only don’t have their long-sought-after conservative majority, but for the first time in more than 30 years, liberals would have had the majority on the Court. And that liberal majority would no doubt usher in a second “Rights Revolution,” with the issues that most galvanize the progressive wing of the Democratic Party’s coalition on the table for the first time. Gun control legislation, a reversal of the Citizens United decision, and partisan gerrymandering would all have been within reach. McConnell and his caucus understood this very well, as did conservative interest groups like the NRA, who structured their messaging around the importance of the Court as they urged recalcitrant Republicans to rally around the party’s controversial nominee.

Image of an NRA ad addressing gun rights concerns on the Supreme Court

Of course, Clinton didn’t win the 2016 election. Progressives made the perfect the enemy of the good and defected to third-party candidates and Sanders write-ins at the highest two-party defection rates seen since the 1992 presidential election. In their defense, overly optimistic assessments of the probability of Clinton’s win, especially in states like Wisconsin, no doubt contributed heavily to high defection rates. But perhaps even more critically, these voters were never really told of the stakes of the election. If you are searching your memory for a Clinton ad aimed at getting “Berniecrats” to consider the importance of the Supreme Court vacancy and rally behind Clinton, but can’t remember one, that is because that ad never ran. By failing to adequately define the stakes of the 2016 election, the Clinton team ceded a major strategic advantage to the Republicans.

In the backlash to Donald Trump’s presidency, Democrats are poised to pick up control of the House of Representatives, although gains in the Senate are less likely because seats Democrats can pick up via the Blue Wave may be offset by losses by incumbent Democrats running for reelection deep in Trump country. In addition to their congressional gains, Democrats stand well situated to pick up at least 11, and possibly as many as 13, governorships as well as a slew of seats in state legislatures, reversing some of the big gains Republicans made in state-level elections due to their own enthusiasm advantage during the Obama presidency. The first looks at registration data and 3rd quarter fundraising suggest even my own bold predictions of a large midterm effect may be too modest. A recent FiveThirtyEight analysis finds that if Democrats exceed a 10 point margin in the overall two-party popular vote share in the House, it will translate into even more House seats than my forecast’s current 42-seat pick-up. Democrats will be able to use this power to enforce true oversight over the Trump Administration and if my theory of the electorate is correct, they are also likely to take over the presidency in 2020.

But with issues such as abortion access, civil rights, religious freedom, environmental regulations, and corporate regulations already in the federal court pipeline, this new Roberts’ Court stands poised to reshape American jurisprudence. As Republicans well understand, passing legislation is one thing. Surviving judicial review is another. It is not infeasible that Democrats will obtain control of all three branches of government in Donald Trump’s wake, only to see their legislative gains erased by this new conservative Supreme Court. Going forward, Democrats are likely to win a lot of battles, but they may have already lost the war.

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