The Democrats’ ability to appoint and confirm the next US Supreme Court majority, which will shape the court’s values for years, is hanging by a thread and will be determined by US Senate races in a half-dozen presidential swing states.
These are the same states that play outsized roles in the presidential race, but the latest polls and analyses suggest that Democrats, at best, may retake the Senate by one seat or possibly a 50-50 tie. That stalemate that would have to be broken by the vice president, who also serves as Senate president, and would cast tie-breaking votes. If Donald Trump were elected and Democrats don’t win that one-seat majority, the Supreme Court could turn to the far right.
That edgy scenario is the latest takeaway from seasoned pollsters, who look for repetitive patterns in surveys and who don’t have a partisan record. They say the GOP’s current 54-46 majority is heading back toward Democrats—but by the slimmest of margins.
“The summary is this,” writes the team at the University of Virginia’s Center for Politics. “With more than two months to go, two GOP seats are severely endangered (Illinois and Wisconsin). Just below that duo, Democrats are now slightly favored in traditionally red Indiana, while Republican incumbents in New Hampshire and Pennsylvania are struggling to overcome likely Clinton victories in their states. Republican incumbents are ahead in Arizona, Florida, Ohio, Missouri, and North Carolina, but upsets cannot be ruled out.”
That forecast, which is consistent with the Cook Political Report, means Democrats will have 50 seats, Republicans 49 seats, with one state—Nevada—remaining too close to call as the campaign’s final two-month stretch begins.
This assessment is a much more dicey scenario than many Democrats realize, because Clinton has been ahead of Donald Trump in polls since the Democratic Convention, even as she’s slipped a bit in the past week. The bottom line is that even if Clinton appears on track to win the popular vote and Electoral College, the appointment and confirmation of the next Supreme Court majority is in tight play.
The Republicans, especially Senate Majority Leader Mitch McConnell, are well aware of this reality. McConnell has led that party’s obstructionist response to President Obama’s latest Supreme Court nomination by refusing to hold Judiciary Committee hearings on his nominee, federal appeals judge Merrick Garland.
“Hillary Clinton and the leftwing mainstream media are out to completely transform the political landscape. They will do ANYTHING they can to deceive the American people and trick their way into the White House and controlling the U.S. Senate,” McConnell said in a typically panicked fundraising email this week. “If dedicated Republicans like you don’t step up, the consequences could be utterly DISASTROUS for our Republican senators. Will you help us fight back, before it’s too late?”
The big political money circles know the Senate stakes, and at least on the Republican side, are stepping up in ways not seen in the presidential race. A new analysis by the Brennan Center for Justice at New York University Law School tracked spending in the eight most competitive Senate race and found partisan efforts roughly matched.
“The highest-spending group through mid-August, according to data from the Federal Election Commission (FEC), is the Senate Majority PAC, a Democratic shadow party super PAC with close ties to Senate Minority Leader Harry Reid,” Brennan noted. “Senate Majority has spent $19.6 million across the eight closest Senate races, including $9.6 million in Ohio alone. The group is on pace to match its spending from 2014, when it was the biggest non-party spender in the most competitive Senate contests. An affiliated non-profit, Majority Forward, which does not disclose its donors, has spent an additional $2.7 million.”
But the Republican side, operating through the more shadowy groups—created after the conservative-majority Supreme Court’s latest round of campaign finance deregulation prompted front groups that do not have to reveal donors’ names—tracks the Democrats.
“The Republican analogues to the Democratic groups are the nonprofit One Nation and its affiliated super PAC, Senate Leadership Fund,” Brennan continued. “Both are run by Steven Law, former chief of staff to Senate Majority Leader Mitch McConnell. Yet unlike the Democrats, the Republicans have so far done most of their spending—$22 million in the close Senate races—through the nonprofit One Nation, which does not report its spending or its donors to the FEC. Another $3 million has come through the Senate Leadership Fund, for a total of $25 million.”
Wisconsin and Illinois GOP incumbents threatened. First-term senators Mark Kirk of Illinois and Ron Johnson of Wisconsin face particularly strong Democrats. In Illinois, Congresswoman Tammy Duckworth, an Iraq War veteran, is seen as benefiting from a traditionally blue state that is likely to strongly support Clinton. In Wisconsin, ex-Sen. Russ Feingold, seeking a return, has never trailed in a public poll, analysts note. Trump, meanwhile, has not been targeting either state for presidential campaign efforts.
Democratic edge in Indiana, New Hampshire and Pennsylvania. These state’s races are leaning Democratic. In Indiana, where Gov. Mike Pence has been picked as Trump’s running mate, Democrats got a break when former Sen. Evan Bayh decided to run for his old seat. His name recognition and moderate reputation are said to be in Bayh’s favor. Meanwhile, the two GOP incumbents in New Hampshire and Pennsylvania, Kelly Ayotte and Pat Toomey, are doing better than Trump in polls, “but not by enough to win,” the University of Virginia Center for Politics analysis said. Polls show Pennsylvania’s Katy McGinty, former chief of staff to that state’s governor, and New Hampshire Gov. Maggie Hassan, taking leads in polling averages.
The toss-up state: Nevada. This race has been too close to call for weeks. Republican Congressman Joe Heck faces Nevada’s former attorney general, Democrat Catherine Cortez Masto. This state has been too close to call for reasons that go beyond the tight polling. Trump is well known, not just as a casino owner but as one now involved in a nasty labor dispute. But the key question hinges on what the state’s large Latino population will do when it comes to registering to vote and turning out on Election Day.
GOP strength in Ohio and Florida. Democrats thought they had a chance to pick up a Florida seat after Marco Rubio said he was bored as a senator and was running for president. But after losing badly to Trump in Florida’s spring presidential primary, he decided to run for Senate and this past week Rubio strongly won in the Senate primary. Florida polls now have him doing better than Trump, putting him about 5% ahead of the Democratic candidate, Congressman Patrick Murphy.
In Ohio, polls find the Democratic candidate, former Gov. Ted Strickland, is not being carried forward by Clinton’s lead. Strickland was governor from 2007 to 2011, the heart of the Great Recession, which has been one line for GOP attacks. But Republican incumbent Sen. Rob Portman and his allies have spent more on TV ads than any other Senate race. Portman leads Strickland by eight to 11 points, according to a variety of polls.
These polls, analyses and projections point to the uneasy reality that the next Senate majority, which will confirm the next Supreme Court justice, hangs by a thread—a likely one-vote margin or tie-breaker by the next Senate president, the sitting vice president.
While the 2016 election has defied many predictions, the latest surveys from presidential swing states now show a tighter race for the Senate majority than for the White House. That majority will determine the next Supreme Court majority, which will likely preside for many years to come, and in many ways will be as consequential as who occupies the White House.
Steven Rosenfeld covers national political issues for AlterNet, including America’s retirement crisis, democracy and voting rights, and campaigns and elections. He is the author of Count My Vote: A Citizen’s Guide to Voting (AlterNet Books, 2008).
From The Progressive Populist, October 1, 2016
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