In a seemingly endless year, American politics has turned upside down yet again. The death of Supreme Court Justice Ruth Bader Ginsburg has thrown the Senate and country into another bitter partisan fight. Observers have wondered if this ensuing fight over her replacement, Amy Coney Barrett, will impact the upcoming election. It seems logical that such a high profile battle will affect the outcome of the race. But there is no evidence the court fights of 2016 and 2018 changed those respective elections in any real way. 2020 is likely to be similar.
2016
The first election to look at is the battle over Merrick Garland in 2016. President Obama picked Garland to replace the late Antonin Scalia. The Republican Senate majority refused to hold hearings, however, leaving the seat open until the end of Obama’s term.
In the aftermath of Donald Trump’s surprise win, the conventional wisdom became that the open seat helped Trump to win. However, these arguments rest on dubious standing. Despite politicians and partisans caring deeply about the courts, election results don’t provide evidence for their importance in the minds of voters.
Did the Open Seat Bring Home Wavering Partisans?
This is perhaps the line pundits most often repeat when discussing 2016. Time machines are unfortunately not real, so assessing this claim is difficult. It’s impossible to know how the race would have shaken out in the absence of an open seat. But there are useful clues.
If SCOTUS brought home wavering partisans, Republicans who were apprehensive of Trump should have started supporting him in the aftermath of Scalia’s death. Of course, when Scalia passed, the primaries hadn’t even started yet. But pollsters were already testing general election matchups. According to RealClearPolitics, the aftermath of Scalia’s death (February 13th, 2016) had no impact on the polling average between Trump and Clinton. In fact, about three weeks after his death, Clinton’s lead over Trump surged.
Of course, Trump was not yet the nominee, so this is an imperfect metric. There were other candidates who had a path to the nomination. One sign that Trump was consolidating “another Republican, but not Trump” voters would be if his polling converged with theirs in the aftermath of Scalia’s death. But this was not the case. The difference between Trump’s polling, Rubio’s polling, and Cruz’s polling remained consistent in the aftermath of the vacancy. Below is a graph showing Clinton’s margin against each major GOP candidate. Trump was not bringing in supporters from other candidates.
Ending the argument here, however, would be unfair to proponents of this theory. One possibility is that the voters who cared about the Supreme Court but weren’t sold on Trump weren’t soft partisans at all. Maybe the vacant seat kept white evangelical voters loyal to the President. He somewhat counterintuitively did well amongst this group. Many in the community emphasize moral living and observance of traditional values.
Even the president’s supporters would admit that his lifestyle prior to his campaign was not exactly in line with that philosophy. Crude language, divorces, and eccentric mannerisms were all a part of his persona before and during 2016. Despite all this, the evangelical community held fast for him at the ballot box. Was the Supreme Court a factor? It’s difficult to know for certain, but this theory does have some evidence.
Evan McMullin, for example, styled himself as a mild-mannered conservative who contrasted with Trump. He did very well with Utah’s religiously conservative Mormons but faltered elsewhere. In states with large evangelical populations, McMullin struggled to gain traction. It’s not impossible that evangelicals, disappointed with the direction of the court under Obama, held their nose for Trump.
But there is also a simpler explanation. White evangelical Christians have lower than average levels of college education, live mostly in rural, Republican states, and hold conservative views on most issues. In terms of demographics, there’s reason to think Trump’s policies actually fit the community well, even if parts of his persona did not.
Another idea that is prominent among analysts is that fence-sitting Republicans weren’t sold on Trump until Election Day got close. Once the reality of Clinton winning and nominating Scalia’s replacement set in, they came home. This theory is more plausible but is still short on evidence.
Trump’s polling crashed at the beginning of October, merely a month before Election Day. It only recovered at the end of October after James Comey’s announcement regarding Hillary Clinton’s email usage. It does not appear as if Trump was consistently bringing in doubtful GOP voters throughout the campaign.
But perhaps the biggest mark against the idea that the open seat brought wavering Republicans home is the nature of the coalitions. Trump did 2% better than Romney four years earlier but saw his margin decline in many traditionally Republican areas (especially suburban ones). These areas should have had lots of voters who disliked Trump but still thought of themselves as conservatives who valued having conservative justices. If SCOTUS was truly salient to huge swaths of Republicans, Trump should have held up much better in these areas.
Did the Open Seat Turn Out Republicans?
Under this line of thinking, the vacancy didn’t convert any voters for Trump, but it did turn out Republicans who otherwise would not have voted. Determining why voters turn out is a complex and inexact science, but looking at turnout offers some guidance.
If GOP voters went to the polls en masse because of the Supreme Court, then heavily Republican counties should have seen large increases in votes they cast. But this was not what happened. There was no correlation between Obama’s 2012 margin in a county and how its total votes cast changed between 2012 and 2016.
Republican-heavy counties didn’t increase how many votes they were casting at a higher rate than Democratic and swing counties. But maybe this is the wrong way to look at turnout. Perhaps Republicans did turn out at a high rate, but just not in already heavily red counties. If this was the case, then we should see an increase in voters driving a shift towards Republicans. In other words, if the new voters entering the electorate from 2012 to 2016 were disproportionately Republicans, then counties with big increases in voters should also see a large shift to the right. Below is a graph looking at this idea.
As can be seen above, there was no correlation between an increase in votes cast and an increase in Republican performance. In fact, the very opposite was true. The more the number of votes increased in a county, the worse Donald Trump did compare to Mitt Romney (although the relationship is not statistically significant).
Another clue that the court seat did not drive an increase in Republican turnout is issue surveys. Frequently, Gallup asks Americans what they think is the most important issue facing the country. Over the course of 2016, only 1-3% of voters cited judicial appointments and the Supreme Court as their most important issue, depending on the time of year. Even with the open seat, Americans still cited issues like the economy and healthcare as being most important.
In addition to Gallup, Pew also tried to quantify what issues were driving 2016 voters. According to their exit polling, 65% of voters said the Supreme Court was “very important” to them. This sounds stunningly high, but it’s actually fairly pedestrian. Pew only gave voters a finite list of issues, 14 of them to be exact, and voters could say any number of them were “very important” to their vote.
Every issue saw at least 40% of voters saying it was very important to them. Supreme Court appointments ranked 9th out of the 14 issues listed. More importantly, partisanship did not predict who said the court was important. 70% of Trump voters said it was, but so did 62% of Clinton voters. At least according to Pew, the court was not solely a passion of Republicans.
Did the Open Seat Bring Swing Voters to Trump?
The last and most difficult hypothesis which needs to be examined is the one about swing voters. Not the old school, moderate Republicans, but the working-class Obama to Trump voters that propelled him to the White House. Did they move to Trump partly because they liked how he would handle the court? While it is nearly impossible to say for certain, the answer is probably not.
There are a few ways to tease out how swing voters felt about the open seat in 2016. According to Gallup, 52% of Americans supported confirming Merrick Garland, with only 29% opposed. This suggests most Americans did not have an issue with the judge being floated by Barack Obama, a Democrat. More telling though is that in the Pew survey outlined above, moderates, the voters most likely to swing, were significantly less likely to list the court as important to their vote. In fact, according to polling, well over half of Americans cannot name a single Supreme Court Justice. The issue does not appear to be meaningful for most voters.
2018
When pundits talk about the 2018 midterms, two dominant storylines emerge. The Democratic gains in the House of Representatives, and the disappointing Democratic losses in the Senate. The losses in the Senate stung particularly hard for the party. The GOP expanded their majority in the chamber despite Trump occupying the White House, a historical anomaly in American politics. But why?
Most analysts have pointed to the deeply divisive and highly publicized nomination process of Brett Kavanaugh. When allegations of sexual misconduct broke on September 17th, the hearings became a political flashpoint. But, despite what pundits have said, virtually no piece of available data points to this being the case.
Surrounding Kavanaugh, the two broad claims that the piece seeks to address are:
- Kavanaugh hurt Democrats overall
- Kavanaugh hurt Democrats in the Senate races
Both are wrong, but both are worth addressing separately. To start, let’s have a look at the national environment to see if the hearings had an impact.
Did the Kavanaugh Hearings Hurt Democrats by Moving Persuadable Voters Against Them?
This is the first and easiest question to answer. If the nomination process hurt Democrats because it looked bad with swing voters, there would be a substantial drop in the polls for Democrats around the time the hearing occurred. This is largely not the case, and any drop was brief and quickly recovered. In the RealClearPolitics average, the allegations broke when Democrats had an 8.3% lead, they ended the campaign with a 7.3% one.
It is worth noting a small dip right before the actual confirmation vote. Two days before, on October 4th, the Democratic lead dropped to 6.6% on the Real Clear Politics average. But this drop is small, far from conclusive evidence, and the Democratic polling average bounced back up before Election Day. On top of that, Democrats maintained a smaller lead for almost the entire summer, so it’s hard to conclude that a small drop from nearly their highest lead of the cycle was due to voters consciously punishing them.
Did the Hearings hurt Democrats by Motivating Unlikely-to-vote Conservatives?
We can show fairly convincingly that the nomination process did not move the polls against Democrats in a significant way. But, perhaps the process made conservatives feel attacked, and motivated low propensity voters to go to the polls. If this were the case, pollsters could have had a difficult time accounting for these voters. However, there is no evidence that this occurred. Democrats performed almost exactly in line with the generic ballot average on Election Day.
Did the Hearings Polarize the Environment Around the 2016 Result?
The 2018 midterm results correlated strongly with the 2016 presidential election results. While many expected the environment to be polarized, the degree to which it was surprised many observers. Was Kavanaugh responsible for this? If he was, then it could be said that he hurt Democrats in the Senate, where the battleground was primarily in red states. However, there is no evidence for this. The 2018 midterms were unusual in the sense that observers were lucky enough to get a stream of quality battleground district polls from The New York Times.
These 96 polls, completed in real-time, can give clues as to how the national environment changed over the last two months of the campaign. Below is a scatterplot of every New York Times live poll. The X-axis is the date the poll ended, and the Y-axis is the difference between the poll’s result vs. the 2016 presidential margin in that district.
As can be seen, the polls barely got more reflective of 2016 overtime. The results also did not correlate with 2016 moreso during or after the nomination process than they did before.
Did Kavanaugh Hurt Democratic Senate Candidates?
Unfortunately, time travel is not a reality yet, and some key data points that would have made answering this question easier are missing. North Dakota, West Virginia, Missouri, Montana, and Indiana all elect their governors in presidential years. Despite this, it’s possible to make comparisons.
The first step is looking at polls of key Senate races in red states to see if Democratic candidates lost their crossover appeal. Below is a graph of every Senate poll that was completed in the states of West Virginia, North Dakota, Tennessee, Montana, Missouri, and Indiana between the dates of September 6th and Election Day.
As is the case with the House polls, there is virtually no trend towards a more polarized environment in the polls of Senate battlegrounds in red states. If the conventional wisdom is correct there would be a pattern of Democratic Senate candidates being unable to outperform 2016. According to polls, Democratic Senate candidates did not lose any of their crossover appeal as a result of the hearings.
Another claim is that Kavanaugh gave voters a reason to keep the GOP in power in the Senate, while Democrats made a convincing case for voters to put them in power in the House. If this hypothesis were true, in aggregate, Democrats in the Senate would have performed worse nationwide than their house counterparts. However, the opposite is true. Democratic Senate candidates outperformed Hillary Clinton’s margin by an average of 10.8% in their respective states House candidates only managed an average 5.3% over-performance.
Were the Results for Democrats Historically Bad?
Political circles consider this idea a near fact. Yes, Democrats lost more seats than opposition parties typically lose in midterm years. But the performances themselves were not bad. Many of the states they were competing in had simply become too red. Below is a chart showing how Democratic Senate candidates in 2006 did compare to John Kerry in 2004, and how Democrats did in those same states in 2018 compared to Hillary Clinton.
In many cases, Democrats in 2018 did better compared to Hillary Clinton than their 2006 counterparts did compared to John Kerry. 2018 did not see the end of Democratic overperformance in key Senate races. Their performances were actually in line with historical results. The problem? Most of 2018’s key Senate races were in states that had just become too red. Even large Democratic overperformances couldn’t create a win.
Why Does the Narrative Persist?
With it being clear that none of the available statistical evidence can back up the Kavanaugh effect, it is worth asking why it became conventional wisdom so quickly. There are multiple reasons, but perhaps the biggest is the historical anomaly of the results. Four Democratic incumbents lost their seats. For a year with a Republican in the White House, this is highly unusual. Observers would be forgiven for thinking this was an indictment of Democratic Senate candidates. But it’s not.
Democratic losses occurred because the playing field was in predominantly red states. Looking at simply the number of incumbent losses is a mistake because it implicitly assumes that the electorate operates as an omnipotent hive mind that rewards parties that do the “right” thing with wins and punishes ones that do the “wrong” thing with losses. Democrats running for Senate had more crossover appeal than their counterparts in the House, but they simply started in too big a hole.
The second reason this narrative persists is because of the media circus that surrounded the hearings. It’s not surprising that many of the same outlets and pundits that frantically covered the hearing would believe that it had an impact on the election only a month after its conclusion. It also makes for easy, explainable analysis – reducing results down to a single vote, a single story. It makes politics more exciting than the simple reality that the modern American electorate is more polarized and inelastic than it has been in decades.
But the numbers for Kavanaugh just aren’t there. The polls over the last two months of the campaign, both for the House and Senate, do not show the country becoming more polarized as a result of the hearings. The actual results do not show any evidence that Democratic Senate candidates performed worse relative to 2016 than their House counterparts. In fact, the data shows the opposite.
Voters liked the Democrats running for Senate more than they liked the ones running for the House. The lesson to take from the Kavanaugh hearings is that much of the procedural fighting that happens within the beltway does not have much salience with voters.
2020
Now the country stands at a crossroads, with another election and Supreme Court nomination fight looming. But will the replacement of Ruth Bader Ginsburg impact the election? In truth, analysts float five main hypotheses as to how the nomination of Amy Coney Barrett may play out.
- Republican turnout will increase
- Democratic turnout will increase
- Everything will become more partisan
- It will bring swing voters to Trump
- It will bring swing voters to Biden
As has been a theme up to this point, however, it is a struggle to find concrete evidence supporting any of them.
Will it Increase Republican Turnout?
This line of thinking is essentially the 2016 conventional wisdom copy and pasted. This runs into three main issues. The first is that turnout will likely already be sky-high in 2020. According to recent polling, a far higher percentage of voters are engaged in the presidential election than in years past. Primary turnout has increased drastically compared to 2016 and 2018. In truth, there likely isn’t much room to drive turnout higher.
Another issue is that Amy Coney Barrett will likely be confirmed before Election Day. There will be no open seat to dangle in front of the conservative base. No doubt confirming her replacement will be a big win for conservatives, but voters rarely reward parties for policy victories. Democrats passed Obamacare in 2009 and the GOP dominated 2010. Trump passed his signature tax cut bill in 2017, and Democrats still surged in wealthy suburban districts a year later.
Voters don’t go to the polls because of warm and fuzzy feelings about victories. They go because of anger. By a feeling that the future of the country is on the line. That’s why the party of the President struggles to motivate its voters for midterms. Voters are comfortable after victory – assured that the country is headed in a good direction. Not a recipe for high turnout.
The last issue with this line of thinking is that it is completely incompatible with the conventional wisdom of 2016. Many of the same pundits who push this line of thinking also think the open seat in 2016 motivated GOP voters. Those views are irreconcilable. If both were true, then filling a vacant seat motivates conservatives, but not filling a vacant seat also motivates them. This essentially preordains that a court vacancy, no matter the circumstances, will motivate conservatives.
Will it Increase Democratic Turnout?
This idea is slightly more plausible but still runs into problems. Yes, Democrats may be motivated by what they feel is a GOP overreach on the courts. GOP voters reacted similarly when they saw what they believed to be a Democratic overreach on healthcare. But again, interest in this election is already hitting record levels. Turnout in Democratic primaries has been well above what it was in 2016 or 2018. There aren’t that many apathetic Democrats left to turn out.
Will it Make Everything More Partisan?
This is not an insane idea. After all, this is what most analysts think happened in 2018 – a high salience and partisan issue reduced ticket-splitting and hurt red-state Democrats. It should be clear by now that this article is skeptical that’s what happened in 2018. That being said, it’s not impossible to envision this being the case if the fight over Barrett becomes particularly nasty.
But it is also worthwhile to remember that down-ballot results already match the top of the ticket relatively closely. Democrats could conceivably win a Senate majority if all their candidates ran exactly even with Biden. It would certainly put a ceiling on some of their reach targets such as Iowa, Montana, and Alaska. But overall the map is much more favorable to them than it was in 2018.
Will it bring swing voters to Trump?
This argument posits that middle of the road voters will break for Trump based on the court. Mainly, there are two lines of reasoning. First, that there are moderate conservatives who are voting for Biden, but for whom the court is an issue they agree with Trump on. These soft partisans will be encouraged to vote Trump by his rhetoric on the issue. Second, that some Democrats like conservative jurisprudence, and can be convinced to hold their nose for Trump. Neither of these finds much support.
According to recent polls from The New York Times, preferences for Supreme Court nominations closely mirror the presidential preferences in each state they polled. This is backed up by other polling, which finds that opinions on who would appoint better justices closely mirror the presidential topline. Surveys also show the majority of Americans favoring the winner of the November Election filling the seat. This isn’t even considering the 2016 polling from Pew which points to the court being more important to ideologically stringent voters than anyone else.
But perhaps more important than the numbers is what the public has seen with its own eyes. Trump and the GOP have routinely promoted the number of judges that have been confirmed under the administration. At every rally Trump mentions the judiciary to huge applause. It’s simply hard to imagine a voter who has cared about having conservative courts for the last four years and still isn’t voting for Trump.
Will it Bring Swing Voters to Biden?
It’s no secret why Democrats are hoping the saga will bring swing votes to Biden. Republicans refused to consider the nomination of Merrick Garland in 2016, but now vow to confirm a replacement to Justice Ginsburg. Republicans have attempted to justify the move as logically consistent, but it’s not hard to see how voters might view this as a flip flop.
Unfortunately for Democrats, voters don’t care. Political science research points to voters being unmoved by accusations of flip-flopping. A 2014 paper showed that even when presented with a clear case of a politician reversing their opinion, voters only cared if the politician agreed with them at that moment. Given this, and the high polarization of the last few years, it seems foolhardy for Democrats to believe they can use this hypocrisy for electoral gain.
Nobody debates that the Supreme Court matters. It makes hugely impactful rulings that have a profound impact on the country. But in terms of vote choice, it doesn’t seem to be a big deal. Polls and election results suggest that vacancies and confirmation hearings do little to move voters or change outcomes.