I know that Ruth Bader Ginsburg’s empty Supreme Court seat has provoked an epic, long-awaited clash between Democrats and Republicans, that the very principle of judicial independence hangs dangerously in the balance. I realize that the social-media wave cannot be stopped, that the talking heads cannot be silenced, and that Democrats in Congress must fight this nomination. Nevertheless, let me try to convince anyone who will listen: Democrats should not spend the weeks between now and November talking solely about judges, Mitch McConnell, and the Supreme Court.
Why? Fixating on the Court organizes the electorate along two fronts of a culture war, and forces people to make stark ideological choices. Instead of focusing voters on the president’s failure to control COVID-19 or the consequent economic collapse, the culture war makes voters think only of their deepest tribal identities. To put it differently: Americans who define themselves as “pro-life” or as socially conservative might consider voting for Joe Biden if the issue at stake is the botched pandemic response. If the issue is conservative judges versus liberal judges, then they may stick with the Republicans.
Given the quirks of the American electoral system, these undecided voters matter, even more than the fired-up, well-organized inhabitants of liberal enclaves. The Democratic base may now be making record donations to Democratic campaigns, but if money was the only thing that mattered, Jeb Bush would be president. On its own, the Democratic base can’t determine the outcome of presidential elections, let alone the Senate majority. These contests are settled in a small number of states by a tiny number of independents and disillusioned partisans, the kinds of voters who used to be “Reagan Democrats,” but who now might become “Biden Republicans.” And they may well be spooked by the prospect of “liberal judges,” a phrase designed to evoke lawlessness, degeneracy, and disorder.