The impending battle over replacing Antonin Scalia on the U.S. Supreme Court will undoubtedly loom over this year’s presidential contest. But it may have an even larger role in an often overlooked 2016 election contest: the fight for control of the Senate.
The Senate is in play this November, and the same vulnerable Republicans whose defeats might cost the GOP control of the chamber are at once among the likeliest to back President Barack Obama’s nominee. They are also the likeliest to suffer if the fight has political costs to the party.
The Democrats aren’t favored to retake the Senate. They would need to gain five seats (or four if they retain the presidency). But they have a real opportunity to win because a large number of Republicans from competitive or Democratic-leaning states are up for re-election. These Republican senators could have strong electoral incentives to support Obama’s Supreme Court nominee — otherwise, their opposition will be used against them.
The large number of relatively moderate Republicans from relatively moderate states is an artifact of the sweeping Republican victory in the midterm elections six years ago. In that election, Republicans flipped six Senate seats in states carried by Obama in 2008: Ohio, Florida, Pennsylvania, Wisconsin, New Hampshire and Illinois.
Moderate voters are crucial
All of these senators, except Marco Rubio of Florida, are running for re-election, and all of them are vulnerable. Democrats have recruited strong candidates in all but one of these states, Pennsylvania — and the situation there isn’t so bad for the party.
What all of these vulnerable senators have in common is that their success depends on winning a fair share of relatively moderate voters who traditionally vote Democratic in presidential elections. All of the Republicans won in no small part by faring better than Republican presidential candidates usually do in socially moderate areas, like the suburbs around Philadelphia, Columbus, Ohio, and Chicago. Rob Portman, the Ohio senator up for re-election, won Columbus’ Franklin County by 3 percentage points, a county Obama would carry by 23 percentage points in 2012.
Big danger to Republicans
The fight over Scalia’s replacement could easily affect, or be affected by, the vulnerabilities of these senators. The debate would pose a big danger to Republicans who depend on winning moderate and socially liberal voters because it would elevate cultural issues — abortion, gay marriage or even the environment — where the party is generally on its weakest ground, especially in northern suburbs.
It’s impossible to know whether these considerations will be enough to persuade some of the vulnerable senators to support Obama, either in hopes of casting themselves as moderates or to insulate themselves from the culture war issues that might harm them in moderate areas.
Expect few surprises
Already, two of the five have come out against any Obama nominee. Ron Johnson, the Wisconsin senator, is one of the two. This is not especially surprising: He was the fifth-most conservative member of the Senate in the last congress, according to DW-Nominate, which scores members on their ideology based on their voting record. Johnson has trailed his Democratic opponent, the former senator Russ Feingold, in every survey that has been conducted so far this cycle.
Somewhat more surprising is Kelly Ayotte, a New Hampshire senator who has drawn a strong challenge from the state’s Democratic governor, Maggie Hassan. Ayotte has a less reliably conservative voting record than Johnson, but her growing national profile — she’s considered a plausible vice-presidential pick — might push her toward a more conservative stance.
Likeliest to support an Obama nominee
Mark Kirk, the Illinois senator, would seem to be likeliest to support an Obama nominee. He has the most moderate voting record and hails from a Democratic-leaning state — one that also happens to be Obama’s home state. The other two senators — Portman in Ohio and Pat Toomey in Pennsylvania — are in more conservative states and have more conservative records.
The Supreme Court appointment could prove to be one of the biggest issues in the presidential election if Republicans are able to block Obama’s nominee.
If Republicans succeed
Who gets to fill the Supreme Court, of course, is always an issue in presidential elections, and three justices are older than 77. But nothing would make the stakes higher than a vacancy that the next president would immediately get to fill. If Republicans succeed in blocking Obama’s appointment, it will make the party’s senators more vulnerable to the charge that they are obstructionists who are part of the problem in Washington.
The issue could still end up dogging those senators who choose to support Obama’s nominee, since a vote for them would still be a vote for the Republican-controlled Senate. It would naturally complement the Democratic message, especially if the Republicans nominate a divisive candidate like Ted Cruz or Donald Trump. That’s troubling for Republicans because there is a strong and perhaps growing tendency for close Senate contests to break uniformly in the direction of the party faring best nationally.
A political Catch-22
Democrats would be positioned to benefit in the Senate if the national race moved decidedly in their favor. They have strong recruits in another tier of less competitive states, like Indiana, Missouri and Arizona. The potential for extremism to cost Republicans in these states was amply demonstrated in the 2012 cycle, when Republicans lost races in Missouri and Indiana after nominating candidates who made controversial remarks about rape and abortion.
It’s hard to see a potential upside for the Republicans, considering the states in play and the view that the Democrats start at a slight disadvantage. The few Democratic states in play — Nevada and Colorado — are well known for social liberalism.
Whether these considerations are enough to sway Republican senators is an entirely different question. The policy stakes of replacing a conservative justice with a liberal one on a divided court are so high that it might still be rational for them to oppose Obama’s choice at all costs.
After all, if the Republicans lose the Senate and the presidency, the end result, a Democratic president choosing the next Supreme Court justice, would be the same as if they conceded.
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