Don’t Make the Election About the Court

Don't Make the Election About Court

I know that Ruth Bader Ginsburg’s empty Supreme Court seat has provoked an epic, long-awaited clash between Democrats and Republicans, that the very principle of judicial independence hangs dangerously in the balance. I realize that the social-media wave cannot be stopped, that the talking heads cannot be silenced, and that Democrats in Congress must fight this nomination. Nevertheless, let me try to convince anyone who will listen: Democrats should not spend the weeks between now and November talking solely about judges, Mitch McConnell, and the Supreme Court.

Why? Fixating on the Court organizes the electorate along two fronts of a culture war, and forces people to make stark ideological choices. Instead of focusing voters on the president’s failure to control COVID-19 or the consequent economic collapse, the culture war makes voters think only of their deepest tribal identities. To put it differently: Americans who define themselves as “pro-life” or as socially conservative might consider voting for Joe Biden if the issue at stake is the botched pandemic response. If the issue is conservative judges versus liberal judges, then they may stick with the Republicans.

Given the quirks of the American electoral system, these undecided voters matter, even more than the fired-up, well-organized inhabitants of liberal enclaves. The Democratic base may now be making record donations to Democratic campaigns, but if money was the only thing that mattered, Jeb Bush would be president. On its own, the Democratic base can’t determine the outcome of presidential elections, let alone the Senate majority. These contests are settled in a small number of states by a tiny number of independents and disillusioned partisans, the kinds of voters who used to be “Reagan Democrats,” but who now might become “Biden Republicans.” And they may well be spooked by the prospect of “liberal judges,” a phrase designed to evoke lawlessness, degeneracy, and disorder.    

[David Frum: 4 reasons to doubt Mitch McConnell’s power]

The Republican Party knows how to use polarizing rhetoric to split people along tribal lines. Donald Trump spent most of the 2018 midterm campaign talking up the “caravan,” the Central American refugees who were marching toward the U.S. border seeking asylum. Their numbers were small to begin with, and they dwindled further as they neared the border. Nonetheless, they made a useful talking point for Republicans, who wanted to remind their base on which side of the ideological divide they belonged. When Trump sent the U.S. military to the border, the subsequent outrage was justified, but it was also a trap: It drew attention away from real-life issues and encouraged voters to think they had to make a false choice between the caravan, crime, and illegal immigration on the one hand, and tradition, safety, and law and order on the other.   

In a few key states, that gimmick worked. “The caravan helped him,” former Senator Claire McCaskill of Missouri bluntly said after she lost to Josh Hawley, a Republican. She noted that her opponent was also helped by the “Kavanaugh thing,” meaning the story, presented by Republican media, of an upright conservative—a man trying to protect families—smeared by dangerous liberals.

Inciting a culture war didn’t work everywhere. And in places where it didn’t—in all those suburban House seats won by centrist Democrats, for example—that was often not because candidates loudly denounced the president’s use of troops at the border, but because they changed the subject. When undecided voters were thinking about jobs and health care, they were prepared to break their habits and vote for Democrats.

[Read: What Ruth Bader Ginsburg’s death means for America]

Politicians in other parts of the world also use culture wars to their advantage. In 2018, I wrote about the Philippines, a country whose president, Rodrigo Duterte, managed to keep voters’ minds on his shocking policy of murdering drug dealers. Rather than thinking about poverty or illiteracy, his electorate argued about whether they were for him (and thus for “law and order”) or against him (and thus—as he would put it—in favor of “crime and drugs”). A recent study I helped design also showed, among other things, how the Italian populist Matteo Salvini gained traction by keeping Italians focused on the polarizing subject of migrants, even as the number of actual migrants dropped dramatically. Polarization is a well-known authoritarian tactic, too. Russian President Vladimir Putin has his state-controlled media cover the perfidy of the West rather than the country’s declining living standards. Turkish President Recep Tayyip Erdoğan has used anti-Greek rhetoric in the run-up to elections to avoid discussing his own country’s economic mess.

Democrats shouldn’t fall into the same trap. It’s not going to be easy, but Democratic politicians and activists, and even ordinary voters who use social media, should concentrate as much as they can on the tangible issues that people grapple with every day—why their children aren’t in school, why their business has shut down, why their health-care plan is insufficient, why 200,000 people have died—and why the choice of president affects those issues so profoundly.

To turn the focus away from the Republican Party’s abuse of the nomination process does not mean that this abuse isn’t outrageous. The power grab represents an assault on one of our core constitutional values, the principle of an apolitical Supreme Court. But any response or remedy—any legislation or changes to the Senate’s procedural rules, for example—requires the Democrats to win not just the White House, but the Senate. And to win the Senate, it is really important that past Republican voters switch sides. Let’s make it easier for them. This advice may sound strange, but anyone who cares about the future of the Supreme Court needs to speak as little as possible about the Supreme Court, at least from now until November.   

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