A lucky break for Chuck Schumer, since he’s not going to have the votes in the Senate to pack the Court even if he ends up with a majority come January.
That’s not to say progressives won’t make his life hell if he refuses. They will. It might even earn him a credible primary challenge in his next Senate election.
But it’s nice for him to be able to point to polling data and say, “Not only do Americans not want this, even many in our own party don’t.”
New from WaPo:
A 54 percent majority of Americans oppose increasing the number of justices who sit on the bench in a way that would give the winner of the election more influence over the court’s makeup. About a third of Americans support adding justices, 32 percent, while 12 percent have no opinion.
About 6 in 10 Republicans and independents alike oppose increasing the number of justices on the Supreme Court, while Democrats are relatively split, with 45 percent supporting this and 39 percent opposing it.
Biden’s taken heat this week for being cagey about whether he’d agree to pack the Court or not, but once again his “try not to say anything about anything” strategy has served him well. If he started hollering about adding justices, he’d weird out the people who like him precisely because he’s promising a return to civic norms post-Trump. You can’t be the “norms” guy if you’re blowing up SCOTUS.
If you don’t like WaPo’s data, how about this, from Yahoo News and YouGov?
Only 32 percent support increasing the number of justices to the Supreme Court (39 percent oppose, 29 percent are unsure). Just 37 percent support abolishing the filibuster so that 40 senators cannot block legislation (23 percent oppose, 39 percent are unsure). And voters are divided 35 percent to 35 percent on whether it is a good or bad idea to expand the court “so that five justices are affiliated with the Republicans, five are affiliated with the Democrats, and five are apolitical and chosen by the other 10 justices.”
Democrats are more supportive of Court-packing in this poll (48/22), but even here they can’t get to 50 percent within their own party for the idea.
Having said that, I think this question is a moving target. *In the abstract*, even Democrats are wary about taking drastic action to shift the Court back towards the center following a strong tilt to the conservative side. But would they be less wary if the Court suddenly overturned Roe? Or if it nuked ObamaCare? Or, the truly apocalyptic scenario, if it upheld some dubious Trump legal challenge to ballots this fall that assured him a second presidential term? Those numbers will move, at least on the left. Americans don’t care about process, and Court-packing is a process argument. But they do care about results. As their disappointment in results deepens and turns febrile, they’ll consider outlandish process ideas to engineer the results they want.
Speaking of which, this same YouGov poll finds voters somewhat opposed to overturning Roe (29/54) and somewhat opposed to overturning ObamaCare (29/50). They think the Court is especially likely to follow through on the latter, with 69 percent saying it’s at least somewhat likely that O-Care will be nuked. Conventional wisdom among the chatterati already holds that Democrats’ strongest argument in making the case against Trump’s SCOTUS nominee is highlighting the threat to ObamaCare, which I think is right. You’re not going to convince Americans that Amy Coney Barrett is a “handmaid” and you may not be able to convince them that the new Court will nuke Roe, as voters have been warned by liberals about that for nearly 50 years and it still hasn’t happened. But you *might* be able to convince them that a 6-3 conservative majority is about to take away coverage for preexisting conditions in the middle of a pandemic, with many millions of Americans out of work and relying on the O-Care exchanges for insurance. That’s the smart play for Dems in their messaging next month, argues Ron Brownstein:
Comparable state-by-state data isn’t available on the ACA’s protections for patients with preexisting conditions. But the 2018 election results suggest that defending those provisions was an effective argument for Democrats virtually everywhere. National polling earlier this year by the nonpartisan Kaiser Family Foundation reported that not only did 95 percent of Democrats and 83 percent of independents consider preserving those protections “extremely” or “very” important, but so did 71 percent of Republicans. More recent Kaiser polling, conducted in partnership with “The Cook Political Report,” found that voters in Florida, North Carolina, and Arizona all gave Biden big leads over Trump on the issue of protecting patients with preexisting conditions—a measure of how widely Democrats lead on that concern.
Likewise, a new poll from the nonpartisan Commonwealth Fund, released today, found that voters in 10 battleground states prefer Biden over Trump on the issue. The Democrat led by double-digit margins in almost every state tested—not only in places where Democrats have been competitive, such as Michigan, Pennsylvania, Wisconsin, and Florida, but even in states where the GOP has dominated, like Texas, Georgia, Arizona, and North Carolina.
Opinion on abortion is divided closely enough in some swing states that Democrats screaming about Roe might not do them much good, Brownstein notes. But there’s little division about whether coverage for people with preexisting conditions should continue, and that’s the big risk posed if a Republican SCOTUS flushes O-Care.
Trump understands that and did what he could yesterday to show voters that he wants to protect that coverage, signing an executive order stating that it’s his policy that such coverage should continue. But the order has zero practical effect; it’s essentially just a glorified press release by the White House affirming that Trump will push for Congress to reinstate coverage for preexisting conditions after the Trump/Barrett Court blows it up. He needed something he can point to at Tuesday’s debate when Biden inevitably attacks him for trying to take away coverage and demands to know where the GOP’s alternate health-care plan is after 10 years of trying to replace ObamaCare. The best Trump could do under the circumstances was cough up this toothless document, which WaPo describes as the White House “rebranding rather than repealing Obamacare.” Basically true.
By the way, in keeping with the trend in so many other polls this week, both WaPo’s (57/38) and YouGov’s (53/40) surveys find majorities want the next president to fill Ginsburg’s seat after the election instead of having Trump fill it now. That’s not too ominous for the GOP: The Post also points out that 63 percent wanted the Senate to hold hearings and a vote on Merrick Garland in 2016, and when Republicans blew them off they went out and handed the party total control of government anyway. These numbers gave me pause, though:
That probably doesn’t matter either. People who are more likely to vote Biden now were probably already turbo-charged to vote for him, and only 11 percent overall say that SCOTUS is their top issue. But I speculated a few days ago that, if there’s an electoral effect from the Barrett nomination, it’s more likely to juice Democratic turnout by inspiring rage and fear than Republican turnout by inspiring gratitude. This result seems to bear that out. But maybe it’s worth it? “I think a 6-3 court is worth the White House and Senate,” said one Republican Senate staffer to Yahoo News last week. “The pro-life community has been waiting on this forever. There has to be a vote.” I think Republicans are going into this with their eyes open. If putting Barrett on the Court means handing Democrats total control of government next year, hey — life is a serious of trade-offs, right?
Trump *could* always put the brakes on and decide that he’ll hold the vacancy open and let the winner of the election fill the seat, believing that that’ll juice turnout on his own side. (He has about 24 hours before tomorrow’s announcement as I write this.) But at this point, would anyone on either side believe him? He’s an utterly dishonorable figure. He could lose 538-0 on November 3 and he’d be calling McConnell the next day telling him to put Barrett’s nomination on the floor anyway. In that sense, filling the seat before the election is the only logical move for the party. No one trusts Trump and no one trusts the Republican Senate to stand up to Trump when he wants to do something dubious, like breaking a pre-election promise not to fill the seat if he loses, so the only possible assumption is that they’re going to fill this seat regardless. Better that Republicans just be honest about it then, as they’re being.
Here’s one of the many people who’ve contributed to our country’s ongoing transition into a banana republic, naturally doubling down on his actions.
Harry Reid says he has “no regret” in changing Senate rules. pic.twitter.com/3VFMcVp6Vl
— The Hill (@thehill) September 25, 2020