Court fight adds fuel to race for Senate in Texas
Democratic dudgeon over President Donald Trump’s move to put another conservative justice on the Supreme Court is filling campaign coffers across Texas.
In the days after the death of Justice Ruth Bader Ginsburg on Sept. 18, the Texas Democratic Party reported a sevenfold increase in online fundraising, though the party would not disclose the total it raised.
Democratic U.S. Senate candidate MJ Hegar received 200,000 donations, an influx that resulted in her best fundraising quarter yet, at $13.5 million.
Democratic presidential nominee Joe Biden largely has refrained from criticizing Trump and Republicans for pushing for Senate confirmation of the president’s nominee, Amy Coney Barrett, before the Nov. 3 election.
Democratic strategists say Biden instead will stay focused on bigger-picture implications of a potential 6-3 conservative majority on the high court, in particular the effect on health care and the survival of the Affordable Care Act.
A Texas-led lawsuit to repeal the ACA is scheduled to be heard by the Supreme Court a week after the election. If the challenge is successful, 2 million more Texans could lose their health care, adding to the state’s highest-in-the-nation rate of uninsured residents.
Asked about the issue during the first presidential debate, Biden said that “the American people have a right to have a say” and that the Senate should wait before confirming a new justice. But he quickly pivoted to the practical effect of a Trump nomination.
“Now, what’s at stake here is the president’s made it clear, he wants to get rid of the Affordable Care Act,” Biden said. “He’s been running on that, he ran on that and he’s been governing on that. He’s in the Supreme Court right now trying to get rid of the Affordable Care Act, which will strip 20 million people from having health insurance now, if it goes into court.”
Biden went on to link Barrett, a federal appellate judge, to the president’s desire to gut the health care law known as Obamacare. Biden said such a move would disproportionately affect women.
Barrett, in a 2017 academic essay published in a Notre Dame Law School journal, criticized past Supreme Court decisions upholding core provisions of the ACA. Barrett wrote that “it is illegitimate for the court to distort either the Constitution or a statute to achieve what it deems a preferable result.”
Referring to a 5-4 decision in 2012 that upheld the law’s individual mandate, Barrett said Chief Justice John Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
During the presidential debate, Biden said of Barrett: “I’m not opposed to the justice; she seems like a very fine person. But she’s written, before she went on the bench, which is her right, that she thinks that the Affordable Care Act is not constitutional.”
Biden and other Democrats have noted that the balance of the court also affects access to abortion, immigrant rights and the environment.
Yet Biden has refrained from answering questions about whether he would seek to expand the number of Supreme Court seats if
elected, as some Democrats have suggested.
Democratic consultant Lisa Turner said Biden is playing the long game on this issue. By avoiding it, he can juxtapose his restraint and issues-based approach with Republicans’ display of legislative force on the Barrett nomination, she said.
“You’re threading the needle if you’re Joe Biden,” Turner said. “I would want the Republicans to show up the way that they’re currently showing up, which is trying to ram through an appointee instead of dealing with a stimulus package and helping people that are still on unemployment or threatening the fact that pre-existing conditions may not be protected. I think that is going to be a better tactic.”
Whether the issue will move the needle for either candidate in Texas — or national races — is still a question mark.
Throwing spark on race
Trump’s desire for a speedy confirmation of Barrett has put a spotlight on the Senate, and that has breathed life into a relatively sleepy Senate race in Texas between incumbent Republican John Cornyn and Democrat MJ Hegar, whose fundraising and polling had been lagging.
“Since the passing of Justice Ginsburg, we have been humbled by the outpouring of support from people whowant to ensure that her legacy of fighting for equal rights and justice for all is continued,” Hegar campaign spokesman Jake Lewis said. “Texans know that on Nov. 3, preserving our health care is on the ballot, protecting women’s rights is on the ballot, defending voting rights is now on the ballot, which is why they are fired up and energized to send Sen. Cornyn packing.”
For at least two years straight, Texas has had the highest rate of uninsured people in the nation, census data show. In 2018, the rate was 17.7 percent, or about 5 million people, up from 17.3 percent the year prior. Hegar has made it a campaign issue, taking aim at Cornyn for his leadership role in the GOP’s effort to repeal the ACA three years ago and his continued support for abolishing it.
Cornyn recently explained on the Senate floor why he supported a Senate vote on Barrett before the election, saying it was the will of the voters who elected a Republican president and Senate majority.
“Do you think we would still be hearing the same arguments from our friends across the aisle if Hillary Clinton had become president and been able to nominate” a justice, he asked. “I think not.”
The court nomination is firing up Cornyn’s supporters as well, said campaign press secretary Krista Piferrer.
“Our volunteers who were out knocking on doors this past weekend found the issue was top of mind to many,” Piferrer said. “The message from the voters has been consistent; they want a candidate who shares their values — not someone like MJ Hegar who’d allow (Senate Minority Leader) Chuck Schumer to pack the court with liberal judges who legislate from the bench.”
National polling suggests the issue resonates mainly with voters who already have made up their minds.
More anger at Trump?
A majority of voters want to see the next president choose Ginsburg’s successor, rather than have Trump do so now, according to a Washington Post-ABC News poll. Democrats are more convinced than Republicans that the issue makes it even more important for their candidate to win, the survey found.
Biden appears to be in a slightly better position to benefit from a Supreme Court nomination battle. The poll found that 64 percent of his supporters say it makes it “more important” that Biden win the election, compared with 37 percent of Trump supporters when asked the same question. The majority of Trump supporters, or 62 percent, said it made no difference.
But Texas political consultant Bill Miller, who has worked for candidates of both parties, says a political win right before an election will work to the Republicans’ benefit.
“It breeds enthusiasm — you’re getting a Supreme Court justice nominee that you didn’t expect on the eve of an election,” Miller said. “Republicans are enthusiastic about that, as the Democrats would be if it were the other way around. It’s an enthusiasmbuilder, it’s a feel-good moment, and especially so close to the election, it will carry over right into early voting and right into Election Day.”
On the other hand, the electorate is already extremely polarized, political strategists said, so the issue is more likely to fire up voters from the Democrat and Republican bases than to engage voters who are not so sure.
Relative to other issues, the Washington Post-ABC poll found that the Supreme Court nomination did not animate voters of both parties as much as other issues, including the coronavirus outbreak, health care and racial justice.
“The anger is already there about Trump,” Miller said, referring to Democrats. “They’ve got plenty of anger for Trump, with or without this deal. That cup is already full.”