Ginsburg's death is raising the stakes in the Pa. presidential election: 'It's enormous'
Mourners have dropped off bouquets and gathered outside the Supreme Court early Saturday in quiet tribute to the late Justice Ruth Bader Ginsburg. (Sept. 19) AP Domestic
A tight presidential contest in battleground Pennsylvania will intensify this week with multiple campaign stops and political strategists working to ensure their party has an advantage after the death of U.S. Supreme Court Justice Ruth Bader Ginsburg.
If it seems crass to immediately discuss political advantages after the death of a justice who championed equal rights, it's because it is, according to Pennsylvania pundits. But that didn't stop Republicans and Democrats from drawing battle lines immediately after Ginsburg's dying wish to not be replaced by the current president.
The Trump campaign is already selling a "Fill That Seat" T-shirt.
The fight to preserve or block a conservative majority on the nation's highest court will extend to Pennsylvania politics, and the work begins this week. The question is what does Ginsburg's death change in the presidential race and which voters does it motivate.
But strategists in both major parties agree, in an election year that already includes the biggest public health crisis in 100 years and the biggest civil rights movement in 50 years, Ginsburg's death and a Supreme Court vacancy will have a major impact on the presidential election in Pennsylvania.
"It's enormous," said Jeffrey Lord, a political analyst who served as an associate political director in the Reagan White House and worked on the appointment of Justice Sandra Day O'Connor, the first woman on the high court. "What an incredible year this has been already. Having Justice Ginsburg's death now is truly jaw-dropping."
But before a deeper look at what's ahead, it's important to know where the presidential race stood in Pennsylvania before Ginsburg died.
Where were we in Pa. before Ginsburg died?
The presidential race was already competitive and tense in Pennsylvania, with Democratic presidential nominee Joe Biden holding an edge so slight it was within the margin of error.
As of Sunday evening, Biden had a 4-point lead in Pennsylvania, according to the RealClearPolitics average of polls.
"Biden's lead is solid, not great," said Chris Borick, political science professor and director of the Muhlenberg College Institute of Public Opinion. "Trump is very much in play in Pennsylvania, just like 2016."
President Donald J. Trump in 2016 outlasted 17 primary candidates to make it onto the November ballot and defeat Hillary Clinton by 44,000 votes in Pennsylvania. Before Trump's victory, a Republican presidential nominee hadn't won Pennsylvania since George H.W. Bush in 1988.
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Trump has campaigned in Pennsylvania more than any other battleground state since he first launched his candidacy in 2015. He frequently talks about winning the state — a victory that is partially credited to a motivated conservative base that wanted Trump to protect a Republican majority on the Supreme Court bench after Antonin Scalia's death.
"There's no question Antonin Scalia's death helped President Trump win," said former U.S. Sen. Rick Santorum, a Republican who served Pennsylvania in the Senate from 1995 to 2007. "It certainly helped him win Pennsylvania."
The question looms: Could the death of a jurist help him win again?
Which candidate is helped more by the Supreme Court vacancy?
According to Republicans, Trump is helped more by the vacancy.
According to Democrats, Biden is helped more by the vacancy.
Nonpartisan pollsters are more cautious in their approach.
"It could motivate both voting groups, given the stakes," said Terry Madonna, a pollster and political analyst at Franklin & Marshall College in Pennsylvania. "We need some polling to know if one group has more of an advantage."
Pennsylvania is likely to see multiple state polls from various sources in the next few weeks.
The vacancy could energize conservative Christians who may be disenchanted by some of Trump's tough talk but are drawn to the polls by the allure of a Republican-appointed justice who would help overturn Roe v. Wade.
"The president's best move is to say who he would nominate but not hold the vote right away, and then he should challenge Biden to say who he would nominate," said Charlie Gerow, a Republican strategist in Harrisburg. "I feel very strongly that in a comparison of their nominees, voters would strongly favor Trump's pick."
Trump said he would likely choose a woman for the seat, and Amy Coney Barrett has emerged as a frontrunner. Barrett is a 48-year-old devout Catholic and protege of Scalia, and she has most recently served as a federal appeals court judge in Illinois.
Biden said he would not release a list of potential Supreme Court nominees until after the election.
That could help him increase turnout from voters who want to guard against a bigger conservative majority on the bench, and the potential loss of the Affordable Care Act, which gets a Supreme Court review on Nov. 10.
There's also potential that adding a conservative jurist like Barrett would almost certainly spell doom for Roe v. Wade. And that could attract a more intense turnout from suburban women who want to protect a woman's right to choose.
Many Democrats would consider it a slap in the face to replace Ginsburg, a bulwark of abortion rights, with a woman who would overturn Roe v. Wade.
"There's no doubt Democrats are feeling more motivated in large part because Mitch McConnell and Donald Trump didn't even wait for the body to be cold to say they would name and vote on a replacement," said Jesse White, a political strategist at Perpetual Fortitude, a Democratic consulting and digital management firm.
Ginsburg's death and the attendant Supreme Court vacancy could also further strengthen Biden's appeal in Pennsylvania with college-educated voters and suburban women.
"Ruth Bader Ginsburg was probably the most popular figure in the Democratic Party," White said. "Even if there are voters who maybe don't love Biden, they will be more motivated to vote for him because they will want to keep her seat and legacy. She was a hero for the Democratic Party."
What will happen to Roe v. Wade, gay marriage, the Affordable Care Act and abortion rights in Pa.?
Republicans have failed to undo Roe v. Wade and the Affordable Care Act, despite numerous attempts, and these issues have been pushed to the high court, where they have so far been upheld.
History shows it's hard to undo landmark rulings, especially if they are widely accepted by the majority of Americans, as Roe v. Wade is. Polls have repeatedly shown that three quarters of Americans want to preserve Roe v. Wade. Even in the Republican Party, only about 30 percent want to overturn the legal precedent that makes abortion legal.
So why does an issue with about 30 percent support in the Republican Party and 4 percent support in the Democratic Party get so much attention? It raises money for candidates who want to win elections.
"Republicans want the issue more than the results," White said. "It's a great way to get people to the polls. It's a great way to raise money."
Democrats also use the issue to raise money.
Pro-life advocates spent more than $2.1 million during the 2016 election and $2.6 million in the 2018 midterms, with the overwhelming majority of the money going to Republicans. In this year's election, pro-life groups have spent more than $700,000, but that amount is expected to jump significantly after the next campaign finance filing deadline.
Those amounts were bested by pro-choice advocates who spent nearly $5 million in 2016, nearly $8 million in 2018 and about $4 million so far this year.
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Several federal lawmakers from Pennsylvania — all Republicans — have received pro-life campaign cash and previously signed onto briefs asking the Supreme Court to overturn Roe v. Wade. They include: Sen. Pat Toomey and Reps. John Joyce, Fred Keller, Mike Kelly, Scott Perry, Dan Meuser, Guy Reschenthaler, Lloyd Smucker and Glenn Thompson.
Toomey received nearly $37,000 from pro-life groups in 2016, making him fourth on the list of lawmakers who received the most anti-abortion donations that year. He received more than Trump, who was running for president from a pro-life position. Trump didn't make the top 25 that year, but he's third on the list this year, with more than $27,000 in pro-life donations.
State lawmakers through the years have also imposed restrictions on abortion rights, including that "a patient must receive state-directed counseling that includes information designed to discourage the patient from having an abortion, and then wait 24 hours before the procedure is provided," according to the Guttmacher Institute, a pro-choice research organization.
Pennsylvania Gov. Tom Wolf, a Democrat, has vetoed abortion bans and restrictions that have come out of the Republican-controlled Legislature in recent years.
But if Trump gets to appoint a conservative justice, several Republican and Democratic strategists agree that federal abortion rights are at risk of being overturned.
"Roe v. Wade might be overturned if President Trump gets his pick," Lord said. "Gay marriage probably won't be."
And many political eyes are on Nov. 10, when the Supreme Court a week after the election will hear arguments on the constitutionality of the individual mandate part of Obamacare that requires Americans to purchase health insurance or face a penalty.
Health care has been a top campaign issue for Trump, who wants Obamacare overturned, and for Biden, who wants to preserve it and expand coverage to low-income Americans.
These major issues of health care, abortion and gay marriage could come before a more conservative court, starting as soon as Nov. 10 with the Affordable Care Act.
The partisan divide, which is at its highest level since polling began, could grow deeper if these key pieces of legislation are overturned.
"It will further divide the country," Lord said. "I think you'll continue to see people protesting in the streets, and it may get worse."
'Elections have consequences'
It's become an unofficial slogan in the 2020 presidential race, mostly said by Republicans with a shrug when someone points out hypocrisy:
"Elections have consequences."
Democrats are seeing those consequences, as Trump has appointed 216 conservative federal judges to lifetime appointments, including two on the Supreme Court. There are currently 34 judicial nominations waiting approval in the Senate, and now he may get to pick another Supreme Court justice.
A quarter of all federal judges are Trump appointees. Regardless if he wins or loses in November, the consequences of his presidency will reverberate for decades.
This month that was evident in Pennsylvania, when a Trump-appointed judge in western Pennsylvania ruled that Wolf's COVID-19 restrictions on gathering sizes were unconstitutional.
Democrats are trying to block Trump from getting a 6-3 conservative majority on the Supreme Court, slamming Republicans for reversing a precedent they set in 2016.
Four years ago, when Scalia died in February eight months before the election, Senate Majority Leader Mitch McConnell wouldn't vote on former President Barack Obama's nominee Merrick Garland. He said the people should pick the president, and the president should pick the justice.
But he has reversed course this year. The day Ginsburg died, McConnell said the Senate would vote on Trump's nominee.
Senate Minority Leader Chuck Schumer has vowed that "everything is on the table" if Republicans defy Ginsburg's dying wish and push a nominee through with less than two months until Election Day.
But first, Democrats will have to win back the Senate before Schumer's table can be filled with the balanced vengeful meal of ending the filibuster, expanding the Supreme Court bench and granting statehood to Washington, D.C. and Puerto Rico.
Senate Democrats shouldn't point so many fingers at Senate Republicans, according to Lord and other Republican strategists.
"If the president was a Democrat and Chuck Schumer was majority leader, do you really think it would be any different?" Lord said. "They would absolutely vote on a nominee."
To White, the question is: are there rules or not?
"Republicans play to win," he said. "They don't care how they get there. Their slogan in the Trump administration and this election is, 'What are you going to do about it?' And the Democrats have never had a good answer. The Democrats are playing by a certain set of rules I'm not sure exist anymore."
But it's clear the Supreme Court vacancy is a game-changer in the presidential election in Pennsylvania, even as the Republican and Democratic campaigns seem to no longer be about Trump and Biden.
It's about a yet-to-be named Supreme Court appointee.
"With 40 days before the biggest election of our lifetimes, this largely unknown person is the de facto nominee," White said.
Candy Woodall is a reporter for the USA Today Network. She can be reached at 717-480-1783 or on Twitter at @candynotcandace.