One of the low-key biggest (and most pleasant) surprises in a year poisoned by chaos is how unchaotic the process of replacing Ruth Bader Ginsburg with a Scalia-esque SCOTUS nominee has been.
Immediately after Ginsburg’s death, poll after poll showed that Americans on balance wanted the seat held open so that the newly elected president could fill the vacancy. Granted, the preference for that option wasn’t strong — it tended to break along the same lines as the Biden/Trump election polling right now, 51/42 or thereabouts — but a month ago the idea of confirming Barrett before the election was a political loser. A month later, it no longer is. Support for confirming Barrett began to rise after her nomination was formally announced and culminated with the Gallup poll Ed wrote about earlier today finding that 51 percent now support putting her on the Court.
What changed? Two things, I think. Barrett herself made a good impression, and liberals who might otherwise have thrown all of their effort into organizing against her are throwing their effort instead into getting Biden elected. There’s nothing they can do realistically to stop confirmation and they have better things to do right now, so they’re wisely not wasting resources. They’re going to get their consolation prize on November 3, assuming the current polling holds.
A new poll today from the NYT and Siena finds the public a bit more divided about Barrett than Gallup did, but it’s clear now that her nomination and confirmation won’t be a liability for Trump even if they turn out to be not much of an asset either.
A rare spot of welcome news for Republicans came on the subject of Judge Amy Coney Barrett’s nomination to the Supreme Court: While more voters said they would like to see Mr. Biden choose future justices, rather than Mr. Trump, a plurality of voters also said that the Senate should vote on Judge Barrett’s nomination before the election.
Voters were about evenly split on Ms. Barrett as a nominee, indicating that the Supreme Court fight had not given a clear electoral advantage to either party. But a sizable number of voters — about one in seven — gave no opinion, suggesting the court fight had not become an all-consuming issue. Forty-four percent of voters supported Judge Barrett’s nomination, 42 percent opposed it, and the remainder declined to take a position.
Voters split 47/39 in favor of holding a Senate vote on Barrett before Election Day, a turnaround from the early feeling that the winner of the election should make this nomination. Among independents it was 49/40.
Some progressives may be coping with the trend towards Barrett by telling themselves that if the blue wave arrives two weeks from now they’ll have the votes to expand the Court and offset the Republicans’ 6-3 majority. I’m here to tell them: You will not, my dude. The polls on Court-packing have been grim for lefties since Ginsburg passed away and they haven’t gotten better. In late September, the Washington Post found support for adding justices at just 32/54; another poll conducted at the time by YouGov also found support at 32 percent. Nearly a month later, with lefties having taken their best shot at persuading Americans that packing the Court is only fair and right, the Times finds support … flat. If anything, opposition may have ticked up a bit.
Think Joe Manchin, Kyrsten Sinema, and new purple-state Democrats like Mark Kelly are going to bite the bullet on something that’s polling -40 with independents, knowing that they’d need to nuke the filibuster first just to make it possible? With Biden already providing them cover to say no by indicating he’s not a fan of Court-packing? C’mon. It’s time for lefties to put their big-boy pants on and abandon this silly idea.
I think they will. If the rest of today’s NYT data is at all representative of reality, they’re staring at a decisive win on November 3. Biden leads Trump by nine overall, by 12 on handling COVID, and by 20 on who can better unite the country. On Trump’s best issue, the economy, his lead is down to a single point. If they get the presidency and the Senate, they’ll have enough on their policy to-do list to let Court-packing drop. Especially if Breyer retires next year and gives them an opportunity to put a young liberal on the Court.
Here’s Van Jones from last week comparing Court-packing to a “teddy bear” lefties are clinging to. In lieu of an exit question, read this piece published a few days ago in WaPo asserting that Supreme Court precedent may require Barrett to recuse herself from any election cases this year. The author is as noteworthy as the substance: It’s Michael Luttig, who was made a federal appellate judge at the tender age of 37 by Bush 41 and became a conservative legal star, for years regarded as a potential Republican SCOTUS nominee. He left the bench in 2006 but is still highly respected in conservative legal circles. For Luttig to suggest that Barrett has a recusal problem is a big deal, especially after yesterday’s 4-4 ruling by the Court on mail-in ballots in Pennsylvania. Barrett would be the deciding vote if that subject came before the Court again — unless she’s forced to recuse.
"Being able to pack the court has become a teddy bear for a lot of Democrats to hug onto at night but and he doesn't want to take the teddy bear away," says @VanJones68 on why Biden has not given an answer on court packing.
"I think he is hurting his own brand by not doing it." pic.twitter.com/edU8fsdg3a
— Cuomo Prime Time (@CuomoPrimeTime) October 16, 2020
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