The best piece of advice anyone can give panicked Democrats right now is, in the words of Mitch McConnell, play the long game. The retirement of Justice Anthony Kennedy has sparked an irrational hysteria from the party’s rank-and-file that they will forever be consigned to minority status, both politically and in the courts.
The reality is that if Democrats don’t overreact to a Republican president replacing a Republican-appointed justice, they will have their chance to shape the direction of the courts when they win back power. But if they overplay their hand and sacrifice their valuable red-state senators for a losing cause, they risk handing Republicans two huge victories: the likelihood of holding the Senate for the long haul and the potential to flip a liberal Supreme Court seat to a conservative one in the future.
Here’s the political reality for Senate Democrats: If they didn’t hold seats in states that Trump won by double-digit margins, Republicans would have 57 senators in the upper chamber—not far from a filibuster-proof majority. The five red-state Democrats up for reelection this year are absolutely critical to the party’s ability to win back control of the Senate in 2020 and beyond. If Democrats hold most of these red-state seats this year, they would have a decisive advantage taking back control of the Senate for the next two election cycles. Lose your most valuable members in 2018, however, and Republicans can plausibly talk about a long-term Senate majority.
The timing of Kennedy’s retirement couldn’t have come at a worse time for these embattled red-state Democrats. If Republicans remain united, Democrats won’t be able to do anything to prevent Trump’s nominee from getting confirmed. Three Democratic senators—Indiana’s Joe Donnelly, West Virginia’s Joe Manchin, and North Dakota’s Heidi Heitkamp—supported Neil Gorsuch’s confirmation last year and are likely to do the same for Trump’s second pick. Sens. Claire McCaskill of Missouri and Jon Tester of Montana voted against Gorsuch, but they will be under more pressure to support the new nominee since the timing of the vote is so close to the election. Sen. Doug Jones of Alabama, who isn’t up for reelection until 2020, wasn’t in the Senate for the Gorsuch confirmation fight.
Some analysts believe that the issue of the Supreme Court will fade if a justice is confirmed before the November election. In that scenario, Democrats would still be motivated to turn out to protest the conservative direction of the judiciary while celebratory Republicans might take the election for granted. But in these pivotal red-state races, opposition to Trump’s Supreme Court pick will give Republican challengers a tailor-made issue to use in the closing weeks of a campaign.
McCaskill’s campaign offers a case study in how difficult the politics of the Supreme Court are for red-state Democrats. She voted against Gorsuch last year after privately agonizing over her decision, and has been mum about her thinking on Trump’s upcoming pick. Her leading Republican opponent, Missouri Attorney General Josh Hawley, is a constitutional lawyer who clerked for Justice John Roberts and is already challenging the senator to a debate on Court-related issues.
McCaskill badly needs to turn out the Democratic base in Kansas City and St. Louis, while also picking off enough Trump supporters to pull out a victory. Her vote against Gorsuch suggests she’s willing to take the political heat for opposing Trump’s nominees. But to do so a second time would invite a relentless attack from Hawley during the most critical time of the campaign.
The best-case Democratic Supreme Court scenario: Stop talking about process and hope that the party’s newfound focus on health care will play to their political advantage. Maybe Trump picks a weak nominee who bombs in the confirmation hearing, giving red-state Democrats some necessary political cover.
Absent an unforced error by Trump, Senate Minority Leader Chuck Schumer should be thinking about how to protect his most vulnerable members in 2018 so he can press his political advantage going forward. As powerless as Democrats feel right now, it’s very plausible that they win back the House in 2018 and take back the Senate and the presidency in 2020—especially given Trump’s underwater approval ratings. With the political tables turned, the fear of abortion bans would become a distant memory. If Justice Clarence Thomas vacates his seat, liberals might even regain a 5-4 ideological majority on the Supreme Court.
But if Democrats spend their time catering to their base for a lost cause—and leading progressives are already talking about Court-packing as an emergency measure—they would be committing political suicide. If they knew how to play the long game, Democrats would be focused on doing everything possible to ensure the survival of their red-state senators. If that means offering bipartisan cover for Trump’s Supreme Court nominee, that’s an appropriate price for winning back power in the near future.