How the Democrats Can Flip the Script on Trump's SCOTUS Nomination | Opinion

After months of trailing in relatively static polls, Donald Trump has been given a wildcard to shake up the presidential race. No, not the debate—which gave everyone more of the same, on everything, in spades. Rather, it is his nomination of Amy Coney Barrett to replace Supreme Court Justice Ruth Bader Ginsburg that gives Trump a chance to change the narrative. And on the Democratic side, there is a great deal of discussion of what actions the party should take.

Joe Biden has so far avoided taking the bait. This is a wise move, one that Democratic Senators and supporters should follow. While the selection of a 48-year old judge may have an impact for decades to come, Democrats have a much shorter time frame to focus on – the run up to November 3. While it may be painful, the party needs to pivot away from discussion of the Republicans' quick abandonment of their stated principles on replacing Justices. In fact, they should abandon any thought of stopping the choice or any picayune discussion of Barrett's judicial philosophy. Instead, they need to follow Founding Father Roger Sherman's advice—"When you are in the minority, talk. When you are in the majority, vote"—and maximize the hearing and discussions to attack Trump and the Senate Republicans for unpopular stands on issues.

With less than two months to go to Election Day, Biden and the Democrats must keep their eyes on the prize. While Washington-based pundits and elected officials may love discussing the Supreme Court and potential earth-shaking moves to reshape it, there is no reason to believe that the vanishingly small group of persuadable swing voters care about any procedural issues or even who is on the Supreme Court. These voters, many of whom may have voted for a third party in 2016 or didn't come out, are the ones that count.

As such, the importance of the pick for the election is quite unclear. A recent Morning Consult poll has shown voters care more about the Supreme Court than they have in recent years. And the exceptional fundraising that has flooded the Democratic Senatorial candidate coffers in the last few days, suggest that the base voters certainly care about the pick and the potential for monumental change. But the persuadable voters are a much smaller group. Repeated surveys have shown that there is a lack of knowledge about the court. A 2018 C-Span poll found that more than half of Americans could not name a single Supreme Court Justice. It is hard to believe that anyone who is undecided is likely to switch their vote based on complaints about Republican misbehavior or procedural questions of how the court works.

This should not be a surprise. Political maneuvering has never been that exciting of a story to voters. Even outright corruption is frequently ignored. The reality is that voters mainly care about policy and how it will affect their lives directly. This is where the focus should be.

For the Democrats, their polling lead appears to be bolstered by the popularity of ACA healthcare law and their criticism of Trump's pandemic response. The Senate Democrats need to use the hearing to hammer Trump for his continued push to overturn the popular healthcare law as well as the potential for overturning of Roe v. Wade. There are no votes to be gained in an elaborate discussion of the Chevron Doctrine or the relative benefits of Stare Decisis. Any discussion that departs from the president's record is a waste of time for the Democrats.

The Senate Republicans are now threatening retaliatory action against the Democrats for any delay in the hearings or the vote, all of which may help the Democrats line up the hearings for maximum political impact. The threat, which is that the Republicans will fast track judicial nominees and regulatory appointments, is as empty a threat as possible, as the Republicans are sure to take such action if Trump loses.

Trump may have been granted a surprising chance to flip the script on the election. But there is no reason for Biden and the Democrats to play along. The Democrats have virtually no chance of stopping the appointment, but that does not mean that they will lose the fight. This nomination is a chance to highlight the president's unpopular position on healthcare and other issues. The party must grab this opportunity.

Joshua Spivak is a Senior Fellow at the Hugh L. Carey Institute for Government Reform at Wagner College. He writes the Recall Elections Blog.

The views expressed in this article are the author's own.