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Opinion What the Supreme Court battle suggests about culture wars

When it comes to replacing Justice Anthony M. Kennedy, columnist Ruth Marcus has some unsolicited advice for President Donald Trump and Republicans. (Video: Adriana Usero, Gillian Brockell/The Washington Post)

President Trump is on the verge of announcing a nominee to the Supreme Court who undoubtedly will be given the seal of approval by right-leaning groups dedicated to reversing Roe v. Wade. Ironically, the debate surrounding the nomination has reminded us the degree to which social conservatives have lost on key cultural issues. The only way they reverse those defeats is by guaranteeing a Supreme Court majority at odds with the sentiments of voters. That creates a unique problem for Republicans, and an unexpected opportunity for Democrats.

The Daily Beast reports:

According to the Daily Beast/Ipsos poll, 63 percent of voters said they did not want Trump to nominate someone who would make abortion illegal, while 29 percent said they did want that type of nominee. Those margins were fueled by Democrats and independents who overwhelmingly said they wanted the Supreme Court to uphold the landmark case Roe v. Wade. Eighty percent of Democrats opposed Trump nominating a judge who would make abortion illegal and 66 percent of independents said the same. For Republican respondents, 53 percent said they would like the next justice to vote to make abortion illegal, while 41 percent said they would not.

It is remarkable how much opposition (41 percent) there is among Republican voters to the party’s long-sought-after goal of removing constitutional protection for abortion. Funny, GOP leaders have insisted all these years that abolishing Roe is what most Americans want. But it turns out using the court to push conservative positions is, politically speaking, a loser:

  • 61 percent said they did not want Trump to nominate someone who would overturn the court’s gay marriage ruling (compared with 29 percent who favored that outcome)
  • 58 percent said they did not want the president to nominate someone who would allow businesses to refuse services to clients on grounds that it violated their religious beliefs (compared with 32 percent who did)
  • 45 percent said they wanted the president to nominate someone who would give states the right to impose restrictions on gun ownership (compared with 43 percent who said they didn’t).

While it is true that “the numbers provide grist for Democrats to make an effort to derail a Trump Supreme Court pick,” if Trump chooses one of the Federalist Society-approved picks, the polling data provides a political lesson even after a new nominee is confirmed.

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Ronald Brownstein writes:

A clear majority of Americans now consistently say abortion should remain legal in all or most cases. But Republicans dominate the Senate seats from the states where the fewest people agree with that sentiment, while Democrats dominate the seats from the states where the most do, according to PRRI findings. The same pattern holds on same-sex marriage, which now also enjoys majority support but still provokes substantial regional variation.
In all these ways, the parts of the country that most resemble the America of the mid-20th century are poised to nominate and confirm the justices who will set the legal framework for the nation well into the mid-21st. The potential tension that could provoke was evident already in the final weeks of the most recent term, when the Republican-appointed justices (including Kennedy) muscled through a succession of party-line 5-4 decisions. Many observers believe that with Kennedy replaced by a more consistently conservative justice, the court could reconsider decisions authorizing legal abortion, same-sex marriage and other socially liberal rulings.

It’s true elections have consequences, but the disjunction between the Senate majority that produces a very conservative court, on one hand, and, on the other, the public, derives in large part from lesser-populated red states providing a cushion for Republicans in the Senate (and hence the court) and the electoral college. As Brownstein notes, “Democrats have won the popular vote in six of the past seven presidential elections, a feat unmatched in modern American political history. Yet they have captured the Electoral College and the White House in only four of those races, and, largely as a result, now face the prospect that Republicans will control the Supreme Court for years, no matter how often a majority of Americans support Democrats in presidential contests.”

For those who fear the prospect of a Senate, president and Supreme Court greatly at odds with popular opinion, it seems there are a few possible solutions.

First, as we have already seen, women are mobilized like never before. We see it in marches, grass-roots organizing, candidate selection and turnout. More politically active women create a demand for women candidates, who in turn can mobilize more female voters. NBC News reports:

In the latest NBC News/Wall Street Journal poll, we asked voters if they believe the country would be better off with more women in political office. About two-thirds agreed (67 percent), while just 24 percent disagreed. What’s more, about the same share of women and men agreed overall (69 percent of women and 66 percent of men). But the biggest difference — perhaps surprisingly — wasn’t motivated by gender, but by political affiliation. . . .
The share of suburban women who’d like to see more women in political office (74 percent) may be particularly alarming to male incumbents in suburban districts, which happen to be some of the most competitive in the country.

While Democrats have a powerful motivator with women this election (i.e., criminalizing abortion), they would be foolish to rely only on social issues. Women are much more inclined to favor Democrats’ positions on health care and immigration — and to reject Republicans’ nativism, xenophobia and general nastiness.

Second, those tired of presidents who lost the popular vote might push for important changes in the electoral college. Groups such as National Popular Vote, Inc. want to change it to align more closely with the popular vote; others want to award electoral votes proportionally. But that too would require Democrats to start winning — in state legislative and gubernatorial races. Getting red states to agree would be an uphill climb.

By far the easier proposition for Democrats (and for Republicans who frankly think the only way to recover a decent, nonauthoritarian, truth-based GOP is to deliver huge losses to the GOP in November) is to rally their voters, especially female voters, to turn out. In this regard, pushes for voting by mail and automatic registration are helpful.

Trump and the GOP have made no secret about their goal of reversing Roe. Perhaps women can rally to put pressure on the two key women Republicans, Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska). Even if that fails and Trump gets his pre-approved conservative justice through, the ensuing firestorm over abortion might well be the spark setting off a serious political realignment. If that happens, women are likely to lead it.

Read more:

Gary Abernarthy: Millions of women voted for Trump, and didn’t need a man to do it

Megan McArdle: Let Roe go

Charles Lane: Want to overturn Roe, Republicans? Get ready for what comes next.