Democrats hammer GOP over Supreme Court, but there's a flaw

Democratic activists and Hillary Clinton want to turn Republicans' refusal to fill the open Supreme Court seat against them. But that will be a tough task.

The wind was whipping, sending icy gusts down Walnut Street in Harrisburg, where Sen. Pat Toomey (R) of Pennsylvania has an office. But the cold didn't deter Deb Fulham-Winston, who stood on the steps of the federal building, holding up her sign urging the senator to #DoYourJob.

“This is a terrible precedent to be setting,” she said of Senator Toomey and his Republican colleagues. They’re refusing to hold a hearing or vote on President Obama’s Supreme Court nominee until the next president is in place next year. “They are not stepping up to their responsibility. It’s just wrong.”

Two days after Ms. Fulham-Winston and a modest group of protesters chanted “Do your job! Do your job!” – a scene that was repeated in several cities in the state last week – Senator Toomey inched toward the position of the demonstrators. On Wednesday, He announced that he would meet with nominee Merrick Garland as a courtesy to the president and Mr. Garland. 

But don’t expect him to go beyond that, or for the Senate Republican caucus to cave, or even for vulnerable Republicans such as Toomey to lose their seats over this particular issue. 

With a few exceptions, Republicans are holding firm in their view that a presidential campaign is too heated a time to deal with such a key nomination – despite organized Democratic pressure as well as polls showing that a majority of Americans favor taking up a nominee now. 

The reason Republicans can stand firm is because of voters such as Wendy, a mom from Camp Hill, Pa.

Wendy, who did not want her last name used, is following the issue in the news and volunteers that it’s important to maintain the system of checks and balances on government that is provided by the courts. It’s “weird” to keep that spot open for so long, she comments, speaking of the vacancy left by the passing of Justice Antonin Scalia in February.

But here’s the thing. This Supreme Court vacancy is not a burning issue for her. It’s not going to decide her vote. “I don’t know that it would be one of my highest priorities,” she says, about to enter a restaurant in a Harrisburg suburb. 

Same thing for Tina Schellhorn, a registered nurse from Furlong, just north of Philadelphia. The Supreme Court nominee? “I’m not even following it,” she says, though a likely contest between Donald Trump and Hillary Clinton adds spice to her family’s dinner table conversations. 

The nomination to the highest court in the land is what Jennifer Duffy of the independent Cook Political Report calls a “base issue,” not a “voting issue.” That is, it lacks the saliency to move voters for or against a candidate – though it gins up the base on both sides.  

You can see that difference in the polls. 

In Pennsylvania, for instance, 62 percent of registered voters say the Senate should hold hearings to fill the Supreme Court vacancy, while 35 percent say this should wait until after the presidential election, according to a Franklin & Marshall College poll taken earlier this month. National polls also show a majority of voters favor moving on a nominee now.

But the most important problem facing Pennsylvania, according to the poll, is government and politicians (the state has had a severe disagreement over its budget and education funding), followed by education, joblessness, and finance issues. National polls show the economy, dissatisfaction with government, terrorism, and immigration among the top concerns. 

At the same time, the Franklin& Marshall poll shows why this issue excites the base: 80 percent of Democrats say the Senate should hold hearings now; only 34 percent of Republicans agree (73 percent of Independents or something else also favor hearings now). National polls show a similar partisan divide.

“I’m not yet convinced that the Supreme Court becomes the dominant issue in this campaign,” says pollster G. Terry Madonna, of Franklin & Marshall College in Lancaster, Pa. There may be times when the issue could gain traction, for instance, when Supreme Court decisions come out in June, possibly highlighting a split court, he says.

But no decisions are rendered in the fall, the height of election season. Still, “Do I think Democrats will use this issue? Of course,” says Mr. Madonna.

Democratic presidential candidate Hillary Clinton will appear in Wisconsin on Monday afternoon, asking voters to keep the Supreme Court high on their priority list and to imagine what a nominee by a President Trump would mean. 

Wisconsin has a primary April 5. It is also home to Republican Sen. Ron Johnson, who faces a tough election this fall. Like Toomey, he believes the nomination should wait until the next president.

In the two weeks that vulnerable GOP incumbents such as Senators Johnson and Toomey are home on recess, liberal activists are organizing protests, call-in campaigns, and press conferences at Republican senators’ local offices and public events (when they can find out where they are). They’re targeting senators in Pennsylvania, Iowa, Wisconsin, Ohio, and Texas. 

But conservative activists have launched a counter campaign, using television ads to thank senators such as Toomey for holding his ground and to target Democratic senators in red or purple states like West Virginia, North Dakota, and Colorado. 

After Sen. Terry Moran (R) of Kansas recently joined Sen. Mark Kirk (R) of Illinois and moderate Sen. Susan Collins (R) of Maine in calling for a hearing, tea partyers threatened to “primary” him – backing a conservative challenger in his next primary. The Judicial Crisis Network, a conservative group, is planning a TV ad campaign to warn Kansas voters about the stakes involved. 

In Pennsylvania, Republican Joe Cullen calls President Obama’s attempt to move a nominee in the middle of a presidential election “ridiculous” and faults him for acting as if government were a “one-legged stool.”

But, being the vice chairman of the Bucks County Republican Committee, Mr. Cullen was already going to vote for Toomey, who, at the moment, is ahead in polls in this blue state.

“I don’t think people are staying up at night” worrying about the Supreme Court nominee, says Cullen. 

Political analysts would agree – noting the exception of the activists on both sides, who are busily working to motivate their base on the issue.