Monday, September 21, 2020

The Ginsburg Supreme Court Vacancy and the Politics of Abortion

Today on Morning Joe, former Republican congressman Joe Scarborough went on a rant about how the Ruth Bader Ginsburg vacancy on the Supreme Court put Republicans in a terrible position.  According to Scarborough, the fight over confirmation would end up being about abortion rights, causing suburban women to rise up and vote out Republican Senators. 

I've been hearing for four decades how the abortion issue is great for Democrats.  And yet the Republican Party has been winning on the abortion issue since Roe v. Wade was handed down in 1973.  While Scarborough is right in saying most people polled say they do not want Roe v. Wade overturned, the expansive abortion rights provided by that decision, including an unfettered right to second trimester abortions, is not supported by most Americans.  It should not be surprising that Americans answering those polls do not actually know the holding of the legal decision they claim to support. Even supporters of abortion rights generally do not consider the lengthy Roe v. Wade decision (65 pages in pdf form, single space), with its rambling, disjointed prose, to be a work of literary art.  Ginsburg was even critical of the decision and the reasoning used by the author Justice Blackmun, albeit the late justice did very much support the result.

Here is the thing about politics.  When one side gets what it wants on a political issue, the winning side relaxes and the losing side gets energized.  When it comes to the abortion issue, pro-lifers vote on the issue, while pro-choice voters do not.  If Roe v. Wade gets overturned, you are going to see that dynamic finally reverse.  A Roe reversal would, finally, activate abortion rights supporters, with the result being numerous state legislatures codifying abortion rights fairly quickly.   Many of those states, however, will not go as far as Roe v. Wade, particularly when it comes to legalizing second trimester abortions.

The Democrats seem to have learned the lesson about the politics of abortion.  They are not taking Scarborough's suggestion and making the Ginsburg vacancy about abortion, but instead are making it about healthcare, an issue for which the Democrats currently enjoy a clear electoral advantage.  The new justice may be the swing vote on an Obamacare case set to be heard during this coming Supreme Court term.  That is something Democrats can sell to voters.


OOP's short cuts:

  • It's starting to look like the actual vote to confirm a new justice will take place not before the election, but shortly thereafter, during the congressional lame duck session. That vote would have to take place before the first week in January when the newly elected Senators are seated.  
  • It might even have to take place before that - by November 30, 2020.  That's because the contest for an Arizona Senate seat is actually a special election, and if, as expected, the Democrats Mark Kelly defeats incumbent Republican, Martha McSally, Kelly would take his Senate seat at the end of November instead of with his colleagues in January.  Kelly's election would reduce the Republican advantage in the Senate from 53-47 to 52-48.  Since there is so little margin for error, it is almost certain Majority Leader Mitch McConnell will schedule the confirmation vote ahead of Kelly taking office.
  • A Mississippi poll by The Tyson Group (B/C rated pollster by FiveThirtyEight) released today has Republican Senator Cindy Hyde-Smith leading Democratic challenger Mike Espy by just one point. (The same poll has Trump leading by 10.)  I'd be quick to write off the poll as an aberration, except for the fact that the same pollster polled the state in March and had Hyde-Smith with a 26 point lead.

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