The battle over the open Supreme Court seat will affect Texas for a generation

Just days after the death of Justice Ruth Bader Ginsburg, Republicans and Democrats are already engaged in an expensive and divisive fight over the future of the Supreme Court.

By ABBY LIVINGSTON Texas Tribune SEPT. 20, 2020

WASHINGTON — The jolt of U.S. Supreme Court Justice Ruth Bader Ginsburg’s death — and of the vacancy she left behind — was so fully felt across Texas this weekend that even the state’s most hardened political players conceded they didn’t have a handle on the implications.

What they do expect: an apocalyptic fight in the U.S. Senate over filling the Supreme Court seat, regardless of the timeline for when a new justice might be confirmed. And both Texas Republicans and Democrats anticipate surges in fundraising, further polarizing an already heated 2020 election season. Already, dominant Democratic fundraising platform ActBlue said it had raised a staggering $100 million by midday Sunday.

“It’s a big deal and will impact voters in a real way. It may even move soft Trump supporters or non-Trump supporters to vote for him,” GOP consultant Brendan Steinhauser told The Texas Tribune. “And I expect it to cause Dems to really turn out.”

“It’s going to be a battle royale,” he added.

The battle to replace Justice Ginsburg will have historic effects on the national political and legislative landscape, including on the question of access to abortion.

It also is apt to shape Republican Texas U.S. Sen. John Cornyn’s bid for a fourth term this November. And while it may not be immediately intuitive, the national political conflict is also influencing Texas House races on voters’ ballots. These forces are all colliding during what already had the potential to be a generational turning point in Texas politics.

Ginsburg died Friday due to complications from pancreatic cancer. A day later, President Donald Trump said he would announce his nominee — who will be a woman — this week. Both of the state’s senators, Cornyn and Ted Cruz, are expected to support the nominee. But in 2016, both Republican men supported waiting until after that year’s presidential election to hold hearings for a nominee to replace Justice Antonin Scalia, who died more than eight months before the election.Cornyn said at the time that his position was partially predicated on the fact that Democratic President Barack Obama was about to be term-limited and Republicans had recently taken control of the chamber.

Republicans in Texas and across the country are perhaps closer than they’ve ever been to realizing what many in the party consider the holy grail of their political goals. The ideological balance of the high court, already tilted in favor of the conservative justices, is in play just six weeks before the Nov. 3 general election. At the same time, Texas Democrats find themselves facing both their most hopeful moment for significant power in state government — and the most consequential threat to issues they’ve championed like civil rights and abortion access.

Ginsburg’s death may also have major implications for a Texas-led lawsuit to overturn the Affordable Care Act, set for oral arguments on Nov. 10. The justice had been on the side of the majority several times when the high court upheld the law against past challenges. Supporters of Obama’s landmark health care law had pinned their hopes on Chief Justice John Roberts joining the court’s four liberal members to uphold it again.

And immigration policy remains an area ripe for legal review, including a significant case out of Texas that could affect the fates of 700,000 young people who face deportation. Restricting immigration, both illegal and legal, has been a major focus of the Trump administration.

“Without her [Ginsburg’s] legal scholarship, her analysis, her passion, her empathies, she’s going to be missed if she’s replaced by someone that will simply be picked to rubber stamp whatever next crazy thing the Trump administration does,” said Charles Foster, chairman of Foster Global, the largest immigration law firm in the state, and former policy adviser to former Presidents George W. Bush and Obama.

The spectrum of watershed Supreme Court cases that began in Texas is expansive. Over recent decades, the U.S. Supreme Court has heard Texas-based cases addressing discrimination, voter identification, redistricting, college admissions and immigration policy. The landmark Supreme Court decision that banned states from criminalizing homosexuality came from litigation over a Texas law. But the most divisive, by far, was 1973’s Roe V. Wade.

“If anyone wasn’t paying attention before, they need to be now,” said Royce Brooks, the executive director of Annie’s List, an organization that works to help Democratic women candidates who support abortion rights.

That 1973 Supreme Court decision overturned a Texas law criminalizing abortions except by a doctor’s orders to save a woman’s life, finding that the 14th Amendment constitutionally guaranteed a woman’s right to privacy. As a result, it legalized abortion throughout the country. Among many Republicans, installing a conservative justice — even so late in Trump’s first term and so close to the election — would be seen as key to overturning the decision, which many in the GOP have long considered the loftiest of goals.

Republican legislators in Texas and elsewhere have, in the decades since Roe v. Wade, drafted and passed numerous state laws in an attempt to provide an opportunity for the high court to chip away at —or undo — the rights protected by the court’s decision.

“Justice Ginsburg’s passing gives President Trump a historic opportunity to establish a majority on the Supreme Court who do not imagine a penumbra or right to abortion in the Constitution,” statewide anti-abortion group Texas Right to Life said in a Friday statement.

Ripple effects in Austin

If a Trump nominee is confirmed, Democrats see a foothold in the state government as the only way to protect abortion access and many of the other rights in Texas that the Supreme Court protected. They head into the November election just nine seats away from taking control of the Texas House.

Democrats lost control of the Texas House to the Republicans during the 2002 midterm elections. The GOP has controlled every branch of state government — and every statewide elected office — since. The Texas Senate is firmly held by Republicans and led by Lt. Gov. Dan Patrick, who has long pushed hardline conservative legislation and is Trump’s campaign chairman in Texas.

The thinking among many Texas Democratic leaders is that the most effective way to push back on a conservative Supreme Court is to win the state’s lower chamber and block legislation they feel would spark litigation the state has seen land before the Supreme Court in recent years. As a result, many Texas Democrats spent the weekend renewing their focus on winning House races.

“The best way to ensure that Texas doesn’t pass the state law that ends up allowing the Court to overturn Roe is to elect a Democratic majority and a Democratic speaker to the Texas House in November,” Brooks said.

And Democrats have made gains in the state. Trump beat Democratic presidential nominee Hillary Clinton by 9 points here in 2016, the smallest margin of victory for a Republican presidential candidate in Texas since 1996. In a CBS News poll released Sunday, which was conducted before Ginsburg’s death, Trump led 2020 Democratic presidential nominee Joe Biden by 2 points, which is within the poll’s 3.5-point margin of error.

During the 2018 midterm elections, Cruz won reelection by just 3 points over Democratic former U.S. Rep. Beto O’Rourke in what was a tighter race than Republicans had seen in years — a trend that played out up and down the ballot. Democrats also flipped two seats in the U.S. House, picked up 12 districts in the Texas House and won a majority on four state appeals courts.

Building on those wins, a crush of state House and U.S. House candidates are blitzing the state with sophisticated campaigns this year. Texas is now home to an unusually large number of congressional battlegrounds. Democrats are targeting 10 seats held by Republicans this year. Republicans are working to flip two. And in a sign of retrenchment, the National Republican Congressional Committee has canceled about $2 million worth of advertising it had reserved for campaigning in the Houston television market.

Moreover, Biden offers up a curious dynamic for the modern Texas Democratic Party: Given how consistently he is outperforming past Democratic contenders in Texas polls, Biden has the potential to lift Democrats running down-ballot campaigns in legislative and congressional districts throughout the state enough to beat their Republican opponents even if he doesn’t win Texas.

But because Ginsburg’s death means Republicans are now on the cusp of securing a third Supreme Court appointment in four years, GOP donors and voters could suddenly become more energized.

“Unlike President Trump’s previous nominees, Justices Neil Gorsuch and Brett Kavanaugh, who shared some ideological similarities with their predecessors, a Trump appointee for Ginsburg’s seat would significantly shift the direction of the court,” Texas Right to Life said in its Friday statement.

Fundraising frenzy

Still, the most obvious example of how the fight over Ginsburg’s replacement affects Texas politics is the state’s U.S. Senate contest. Cornyn faces a challenge from retired Air Force pilot MJ Hegar. Both issued statements Friday night honoring Ginsburg’s life and legacy, but it wasn’t long before politics flared up.

After Cornyn retweeted a reporter sharing U.S. Senate Majority Leader Mitch McConnell’s quote promising that “Trump’s nominee will receive a vote” on the Senate floor, Hegar shot back: “It took [Cornyn] less than two minutes to fall in line with Mitch McConnell. The Supreme Court is on the ballot.”

Cornyn’s office declined to comment on how the senator thinks the next Supreme Court nomination should be handled Saturday and pointed back to his Friday night statement memorializing Ginsburg. As for Hegar’s criticism, Cornyn campaign spokesperson Travis Considine said Hegar “would be a rubber-stamp” for Democratic appointees who would “legislate a liberal agenda from the bench.”

There are questions over whether McConnell will have the votes to move the nomination. At most, he can lose only three Republicans, as Vice President Mike Pence could serve as a tie-breaking vote on a 50-50 split. But there are so few levers for national Democrats to fight the Republican-controlled Senate on a Trump nomination that most of the initial debate was over whether McConnell should put the vote on the floor before or after the November elections.

Most seasoned national Democratic political operatives have moved past the notion of defeating McConnell this year. He is likely to win that contest, so former Democratic administration staffers directed followers on social media to donate to 13 Democratic candidates across the country, including Hegar, in a bid to take away McConnell’s majority in the Senate.

The fundraising frenzy shattered records for ActBlue, the platform that raised $100 million within 48 hours of Ginsburg’s death. Much of that money was directed to specific campaigns like Hegar’s, which secure a lower television advertising rate than super PACs and other outside groups.

“I was at my budget, and now I’m going to give more money,” said Amber Mostyn, a prominent Houston attorney who gives to both state and federal Democratic campaigns.

It was not clear on Saturday just how much money Hegar raised this weekend. An account set up to raise money for Democratic U.S. Senate candidates and take control of the upper chamber, has raised more than $20 million as of Sunday. Of that, $17 million has come after the announcement of Ginsburg’s death. Since the money is meant to be split between 13 U.S. Senate candidates, Hegar could presumably see more than $1 million.

The central question for that Senate race in Texas: Can she and her Democratic allies quickly marshal the tens of millions of dollars needed fund a television advertising campaign that can put the well-financed incumbent back on his heels?

Confident conservatives

Several Republican sources said they had not seen a fundraising surge of that scale yet, but said they assumed money would come in once candidates and incumbents felt more comfortable asking for donations after a period of national mourning over Ginsburg’s death. They expressed confidence that conservative donors would soon engage in the fight.

Cruz, the state’s junior senator, appears more likely to play a leading role in the Senate confirmation battle as a member of the Judiciary Committee — and vocal surrogate on court issues.

Cruz was among the first Senate Republicans — if not the first — to publicly urge Trump to name a Ginsburg successor and encourage the Senate to confirm the appointment by Election Day.

“This nomination is why Donald Trump was elected,” Cruz told Sean Hannity on Friday night. “This confirmation is why the voters voted for a Republican majority in the Senate.”

Brooks, the Annie’s List executive director, noted that years of national Democratic party weaknesses have created an untenable situation.

“Justice Ginsburg’s death is heartbreaking; she’s an iconic American leader whose work has inspired millions,” she said. “But the fact is, the stakes of this election haven’t changed. For the past four years, we’ve been relying on the well-being of a cancer-fighter in her 80s to keep our democracy in tact. It’s always been too much to rest on any one woman’s shoulders.”

Vianna Davila, Emma Platoff and Patrick Svitek contributed to this story.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.