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Republicans try to squeeze last electoral juice out of Supreme Court fight

Analysis: With Judge Amy Coney Barrett's confirmation hearings set for Monday, the political energy of high court battles is shifting toward Democrats.
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WASHINGTON — For years, Republicans have dined out on Supreme Court battles. But Judge Amy Coney Barrett's confirmation fight threatens not only to starve them of a tried-and-true political weapon, but to hand that weapon to Democrats.

That's because the consequences of the high court's composition have shifted with the addition of four Republican-appointed justices — five, if Barrett is confirmed — in the past 15 years. The court's distinctly conservative lean dilutes Republicans' perennial appeal to single-issue conservative voters that one more GOP president or senator means the end of abortion, gun control and barrier-free voting.

The Barrett confirmation hearings that open Monday in the Senate Judiciary Committee will no doubt provide plenty of opportunity for both parties, and for President Donald Trump, to hurt themselves by overplaying their hands. But if Barrett is confirmed, and there's no reason to think she won't be, the court will either reverse course on those issues and others or it won't.

Either way, the argument that it is necessary to elect Republicans to reshape the court is inherently weaker, and the increased prospects of the court moving against public opinion — the vast majority of Americans support gun-control laws and a clear majority back the 1973 Roe v. Wade decision prohibiting state bans on abortion — give Democrats confidence that they have a stronger hand to motivate their own base voters and to sway swing voters.

"Number 1, we don't know exactly what she would do. Although, the expectation is that she may very well overrule Roe," Democratic presidential nominee Joe Biden said of Barrett during a town hall event hosted by NBC's Lester Holt last week. "The only response to that would be to pass legislation making Roe a law of the land. That's what I would do."

The fact that the Democratic nominee feels comfortable promising to make abortion legal, rather than falling back on the court, is evidence of the shifting political dynamics.

The change is also evident in the changed framing of the case both parties are making to voters. For Republicans, it isn't about any of the specific hot-button issues. Instead, they are making a process argument: that Democrats will respond by "packing" the court if they win control of the White House and the Senate.

That is a legitimate concern for the GOP. Democratic activists are clamoring for their party to expand the number of seats for the first time in more than 150 years, and Biden is refusing to say whether he would support that or not.

"We'll cross that bridge when we get to it," Biden told KLAS-TV in Las Vegas Friday. "In the meantime, they should not be going forward with this vote. They should wait until the election because that's the only time the American people have an opportunity to speak."

As Trump has noted, he was elected for a four-year term, and one of the powers of the presidency is to appoint Supreme Court justices with the advice and consent of the Senate. The main reason presidents tend not to appoint justices so close to an election is political, not constitutional: They risk voter backlash, from their base if a centrist is appointed and from swing voters if an ideologue is named.

No Senate Democrat has indicated support for Barrett, while two Republican senators — Lisa Murkowski of Alaska and Susan Collins of Maine, who trails in polls for her own re-election — have said they believe the vacancy created by the death of Justice Ruth Bader Ginsburg last month should be filled by whichever candidate wins the presidency.

In 1864, on the precipice of his re-election, President Abraham Lincoln chose not to immediately pick a chief justice to succeed Roger Taney, who died in October. Lincoln told his lieutenants that he was "waiting to receive expressions of public opinion from the country," Michael Burlingame wrote in “Lincoln: A Life.

Sen. Kamala Harris of California, the Democratic nominee for vice president and a member of the committee that will hold the Barrett hearings, claimed that Lincoln held off so that the new nominee would be chosen by the president elected by voters that November. But there is no evidence to support that reasoning. Instead, it is more likely that Lincoln didn't want to risk alienating any voters on the eve of what would be an easy re-election.

For Democrats, there is little appetite to attack Barrett. Instead, the party's elected officials are focusing on elevating the issues in play for voters.

"What we are doing right now it's making clear what's at stake, and getting everyone in the fight,” Sen. Elizabeth Warren, D-Mass., told NBC News last month. “This fight touches the lives of every single person in this country. It's all on the table.”

The shifting turf of the Barrett fight, from nominee to process, demonstrates that, for the first time in a generation, the energy around a Supreme Court nomination is on the side of the Democrats. They have more to fear from a second Trump term and a continued Republican majority than GOP voters have to gain from the same.

The potential for loss of enthusiasm among conservative voters explains the tension between Senate Republicans and President Donald Trump on the timing of a final confirmation vote.

Trump wants Barrett on the court now. Her confirmation would help cement his legacy at a time when he is facing possible defeat. It would add another check mark in an open box as he campaigns on a "promises made, promises kept" slogan. And it would put a third justice of his choosing in place in the event that his re-election hinges on post-voting litigation.

But Republicans concerned more with the fate of the Senate GOP majority generally prefer to hang the nomination over the heads of conservative voters as a lure to get them to the polls. If Barrett is not confirmed before Election Day, that gives them one more chance to tell conservative voters that electing Republicans is essential to preserving conservative jurisprudence and overturning past decisions that reflected a more liberal lineup of justices.

Senate Majority Leader Mitch McConnell, R-Ky., has said he will hold a floor vote as soon as the Judiciary Committee's work is done but has not set a date. Judiciary Committee Chairman Lindsey Graham, R-S.C., hopes to wrap up the panel's vote by Oct. 22. That would leave 11 days, including four weekend days, before the election.

In that way, the timing of the vote, rather than the substance of the hearings, may dictate whether Republicans can use a Supreme Court nomination to squeeze one last jolt of energy out of their base.