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Supreme Court vacancy could energize turnout in election, political science professors say
Amy Coney Barrett
Judge Amy Coney Barrett applauds as President Donald Trump announces Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/Alex Brandon)

In the wake of President Donald Trump’s Supreme Court nomination, voters may be more energized to go to the ballot box in November and political candidates might start spending more and more time in Georgia, according to two University of North Georgia political science professors. 

“A very strong case could be made that every single significant political issue in the nation is ultimately decided by the U.S. Supreme Court,” professor Douglas Young said. “I don’t care if it’s abortion, homosexual rights, immigration, welfare, gun control, the death penalty, whatever. … It sets the constitutional parameters, the boundary lines for every issue. Especially over the last 60-70 years of our history, led by the U.S. Supreme Court, the federal courts have become far more activist and they have dictated policy far more.” 

Young and professor Carl Cavalli said they both believe there could be greater interest in the Nov. 3 election as Trump announced Saturday, Sept. 26, his pick of Amy Coney Barrett. 

Barrett joined the U.S. Court of Appeals for the Seventh Circuit in October 2017. A graduate of Notre Dame University Law School, Barrett clerked for the conservative Justice Antonin Scalia and later returned to Notre Dame’s law school as a professor. 

Nomination's effect on voters 

Young said he would encourage voters, particularly in Georgia, to learn how important the Supreme Court is and how their vote affects the type of nominee that could be set forth by a president and potentially confirmed by their senator. 

As the eighth-most populous state with two upcoming Senate elections, Young said voters in Georgia are “really in a uniquely powerful position this year.” 

"I think it will certainly energize turnout among Democrats who are very concerned about not just the nature of the appointment that it appears to be ramming a justice down our throats and also violating pledges that many Republicans made,” Cavalli said. 

In 2016, many Republicans argued that allowing a vote on President Barack Obama's Supreme Court nominee, Merrick Garland, during an election year would break historic precedent. They argued that the American people deserved a chance to have their say.  

Many Republicans referred to comments then-Senate Judiciary Chairman Joe Biden made as President George H.W. Bush prepared for his reelection bid against Democrat Bill Clinton. Biden argued that if a justice resigned before the election, the next president should fill the seat. 

"It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over," Biden said in June 1992 speech that would be echoed by Republicans in the same chamber 24 years later. 

Republicans, too, could see this as a reason to get to the ballot box, seeing this as an accomplishment and reason to keep a conservative majority on the bench. 

"They'll see a tangible benefit from a Supreme Court that is shifting decisively in their favor from a bare 5-4 majority to a 6-3, two-to-one majority," Cavalli said. 

If Barrett is confirmed, President Trump will have added three justices to the U.S. Supreme Court in a single term. Young referenced President Ronald Reagan who also appointed three people to the bench in the 1980s — Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy. Reagan also elevated William Rehnquist to chief justice. 

"I think that it will draw more attention to the fact that arguably the most consequential, longest-lasting legacy that a president can have is in who he names to the U.S. Supreme Court,” Young said. 

Looking back to the 2000 election and the Bush v. Gore decision that ultimately decided the presidency, Cavalli said it is possible the court could be involved in deciding the outcome of this election. 

"You also have redistricting coming up, and there may be redistricting battles around the country that at least some of which could wind up in the Supreme Court as well,” Cavalli said. 

Some Democratic leaders have discussed the possibility of expanding the number of justices on the court if Trump’s nominee is added to the bench. 

Democratic Massachusetts Sen. Ed Markey said on Twitter that if Republicans don't allow the winner of the Nov. 3 presidential election to select the next justice, “we must abolish the filibuster and expand the Supreme Court.” 

But the sudden vacancy also is fueling tensions among Democrats. While some progressives are urging Biden to embrace reforms including adding justices to the court, he has so far resisted embracing such a major change. 

Biden, who ran a relatively centrist primary campaign and spent 36 years in the Senate, is concerned that such moves would worsen divisions during a particularly polarized moment in American history. 

 Cavalli said he believes that would require Democrats to not only win the presidency but gain majorities in the House of Representatives and the Senate. Congress has the authority to set the number of justices, but these appointments are for life. 

"Once you expand, you cannot automatically contract,” Cavalli said. “So in the short term, this is something that Democrats could do if they got the majority everywhere ... and if they were able to get their act together, but I don't know how feasible it is. Of course, there's nothing to stop Republicans from doing the same thing when they get similar control in the future." 

Young recalled the court-packing plan by President Franklin D. Roosevelt in the 1930s, who was frustrated that a majority of the New Deal laws were being ruled unconstitutional. Even with the Democratic majority in Congress, the 15-member court plan failed. 

Young said he believed there would be "quite a national backlash" if the Democrats attempted this. 

"I think it would smack of sour grapes to a lot of people and not just Republicans,” he said. 

Cavalli said the risk would be destroying the credibility of the court, creating a “bloated monster that is simply changed with every partisan turnover.” 

Though a nominee is selected by a president, justices “don’t owe their loyalty to anyone,” Cavalli said. Justices appointed by conservative presidents have typically veered to the left the longer they stay on the court, Young said. 

“We have already seen (Justices Neil) Gorsuch and (Brett) Kavanaugh break with conservative orthodoxy on at least a couple of Supreme Court decisions," Cavalli said.   

Lawmakers and candidates react to Barrett nomination 

U.S. Rep. Doug Collins, R-Gainesville, and U.S. Sens. David Perdue, R-Georgia, and Kelly Loeffler, R-Georgia, issued statements favorable to Barrett's appointment over the weekend. Meanwhile, Senate hopeful the Rev. Raphael Warnock, who is running as a Democrat to unseat Loeffler this November, made his case for postponing a Supreme Court appointment until after the presidential election.  

Democrat Jon Ossoff, who will challenge Perdue for his Senate seat in November, pointed to comments from Perdue in 2016, calling for a delay in then-President Barack Obama's Supreme Court appointment. 

Loeffler claimed her status as "the first U.S. Senator to call for a vote before the election," and said she was proud to support Barrett as Trump's nominee. 

"With her background as a former clerk to the late Justice Scalia and an originalist, Judge Barrett will protect individual liberties including the right to life, the Second Amendment and religious liberties by ensuring the Constitution, and our laws, are applied as written," Loeffler's statement reads. "While she brings a tremendous record of upholding the Constitution, personal integrity and sterling qualifications, we know that the worst elements of the Left will come after Judge Barrett with everything they have. But as someone who has stood up to the radical Left’s cancel culture and won, my advice for a fellow strong conservative woman is this: Keep going, keep pushing, keep fighting and keep winning." 

Collins, who, like Warnock, is running against Loeffler in the Nov. 3 special election for her seat, has railed against Ginsburg for the work he said she and other "liberal justices" have done to protect the 1973 Roe v. Wade decision allowing elective abortions. And like Loeffler’s, his statement praised Barrett for her "outstanding record on life, the 2nd amendment, and more." 

"More than 60 million babies have been murdered since Roe v. Wade was wrongfully, and unconstitutionally decided in 1973," Collins' Saturday, Sept. 26, statement reads. "But today, for the first time in 47 years, we have the opportunity to disavow the plague cast on our country by the jurisprudence of Ruth Bader Ginsburg and other liberal justices and reaffirm the values of life at all stages." 

Collins hailed Barrett as "a brilliant, accomplished, and highly credentialed jurist" and said he would encourage his fellow senators to "swiftly and without delay" confirm her to the nation's high court. 

The morning after Trump's announcement, Warnock published a tweet warning against rushing "a lifetime appointment to the Supreme Court."  

"We should hold Mitch McConnell to the same standard he set in 2016 & wait until after the election," the tweet reads. "Anything else is blatant hypocrisy." 

Perdue took a more moderate approach in a statement than his Republican counterparts, but also called Barrett an "outstanding choice" to serve on the high court.  

"Georgians want a Supreme Court that applies the law, not makes the law," his statement reads in part. "Throughout her impressive legal career, Judge Barrett has been an ardent supporter of the rule of law and a steadfast defender of the Constitution." 

Like Warnock, Ossoff pointed to 2016, when Republicans stood against a court appointment from Obama. 

"In 2016, Senator Purdue was ADAMANT that no Supreme Court nomination should proceed in a presidential election year," a tweet from Ossoff reads. "Now, with 38 days until the Election — and voting already underway — he didn't even think the nominee needed to answer questions under oath before he announced his support." 

Ossoff also raised concerns over whether Barrett would uphold the Affordable Care Act, the Roe v. Wade decision, and portions of Civil Rights law. 

“The Senate must put the law and its Constitutional obligations ahead of partisanship,” he said. “In the Senate, I’ll support the thorough, deliberative, and full vetting of any Supreme Court nominee — no matter whether a President from my own party nominates them — because that’s the obligation of a United States Senator.” 

Times digital editor Thomas Hartwell, Tribune News Service and the Associated Press contributed to this report. 

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