Burgeoning Supreme Court nomination battle extends to the midterm campaign trail

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It didn’t take long after news broke of Supreme Court Associate Justice Stephen Breyer’s pending retirement for emails to start flying on the midterm campaign trail.

One of the first out of the gate was former Nevada attorney general Adam Laxalt, the leading GOP Senate contender in a key race in a crucial battleground state that could determine the which party will control the chamber’s majority next year.

Laxalt claimed that Democratic incumbent Sen. Catherine Cortez Masto of Nevada would be a “rubber stamp” for whomever President Biden nominates to succeed Breyer on the Supreme Court and charged that her “unserious and predictably partisan approach….makes her entirely unqualified to represent Nevada in the U.S. Senate.”


With Republicans needing a net gain of just one seat in a 50/50 Senate in November’s midterms to regain the majority they lost when they were narrowly swept a year ago in Georgia’s twin Senate runoffs, GOP leaders see a Supreme Court vacancy as a way to target Cortez Masto and the handful of other Senate Democrats up for reelection this year that they view as vulnerable.

Stephen Breyer, associate justice of the U.S. Supreme Court, speaks during an interview on The David Rubenstein Show in New York, U.S., on Monday, Sept. 13, 2021.  Photographer: Jeenah Moon/Bloomberg via Getty Images

“The Democrats know they will lose the Senate majority in 2022. I predict that [Senate Majority Leader] Chuck Schumer and whoever is running the White House will force all Democrats to obey and walk the plank in support of a radical liberal with extremist views,” Sen. Rick Scott of Florida, the chair of the National Republican Senatorial Committee, argued.


GOP strategists also feel the burgeoning high court nomination battle will further energize their party’s base ahead of November’s contests.

“While there’s no chance it dislodges inflation or empty shelves as the defining issue of the cycle, there’s no doubt a court fight can grab a significant share of the spotlight. It energizes base voters in a way few other issues can and routinely boosts grassroots fundraising across the board,” John Ashbrook, a veteran Senate campaign strategist who has ties to GOP leader Mitch McConnell, told Fox News.

But Senate Democrats also view the upcoming nomination process as beneficial as they try to hold on to their razor-thin majority in the chamber.

“This vacancy reinforces the stakes of this year’s election and why we must defend and expand our Democratic Senate majority with the power to confirm Supreme Court justices,” Democratic Senatorial Campaign Committee (DSCC) chair Sen. Gary Peters wrote in a statement.


The Michigan Democrat argued that “protecting Roe v. Wade, coverage for pre-existing conditions, workers’ rights and so many other issues central to the lives of every American are all on the line. And in 2022, voters will make their voices heard by standing with Senate Democrats.” 

Justin Barasky, a veteran Democratic strategist and former senior DSCC adviser who’s a partner at the consulting shop Left Hook Strategies, told Fox News that “if you want to ensure Democrats are fired up to vote on Election Day this will guarantee it.”

And a Democratic strategist who works on Senate campaigns predicted that the nomination process will pump up fundraising and “will energize Democratic base voters and that’s one of the most important components of as successful midterm election for the party in power. And it will put issues that are favorable to Democrats front and center in the conversation in the Senate campaign races. The dynamic is going to be energizing for Democratic voters, and it’s going to put Republicans on the defensive on a series of key issues.”

Democrats also predicted that the president’s pledge to fill Breyer’s seat with an African American female candidate will boost support among traditionally Democratic Black voters, which has wavered in recent months, delivering a win to Biden and his party.

There is some precedent for a high court nomination battle boosting a party’s chances. The combustible confirmation of justice Brett Kavanaugh in the autumn of 2018 arguably fueled Republican voters and likely helped the GOP keep control of the Senate majority in a rough cycle for their party.

“Justice Breyer’s retirement announcement will be viewed as a game changing event by both Democrats and Republicans as both sides gear up for a highly visible and politically charged nomination battle,” veteran political scientist Wayne Lesperance told Fox News. “Both sides will view the coming nomination process as an opportunity to score a big win.  And the truth is, both parties are correct.”


“For Democrats, this nomination process is an opportunity for a win for the Biden administration and incumbent senators in a re-election fight. Focusing on issues like reproductive freedoms, voting and other civil rights, and other progressive issues will energize party activists and serve as a strong fundraising tool. That the President has promised to appoint, and African American woman will also position him well among black voters, whose approval has been in decline in recent polls,” he noted.

And Lesperance, the vice president of academic affairs at New England College, highlighted that “for Republicans, the opportunity to go on the record against all of the progressive goals of Democrats is fertile ground to energize their base and the kind of rich material that will fill fundraising requests.”