What’s At Stake

The Briefing, Vol. VI, Issue 7

This week:

  • Democrats chances of taking the House keep looking better
  • Retirements and redistricting rulings threaten to ease their path
  • Trump judicial legacy can thrive if his party can hold the Senate

House 2018

When the DCCC, Democrats’ House campaign arm, expands its list of targets, it’s often just blowing smoke. But this time, it’s worth taking their bluster seriously. Democrats’ chances of a House takeover seem to look better every day, and for a wide variety of reasons:

Redistricting: Partisan Democratic state Supreme Court justices who were elected in a low-turnout 2015 election have surely secured Democrats a couple of seats already. They recently turned Pennsylvania’s redistricting plan into a new mid-decade political football, employing a dubious interpretation of their state’s constitution.

The outcome of this struggle is sure to cost Republicans at least a handful of seats in Pennsylvania, even if other redistricting cases don’t end similarly. What makes Pennsylvania unique, howevver, is that not even a U.S. Supreme Court ruling that clarifies partisan map-making is permissible where legal (which is probably likely) would overturn this ruling, based on a state constitution and a state high court ruling.

Redistricting is a false scapegoat, overrated as a cause of everything from partisanship (it actually tends to reduce partisan polarization) to Democrats’ losses in recent years. But the sudden elimination of a state legislature’s right to draw the map in just one state where Republicans had the upper hand is sure to help Democrats pick up at least a couple of seats on net in the short run, when all they actually need is 24 seats.

The situation becomes significantly worse if the U.S. Supreme Court ends up ruling — contrary to its fairly recent precedents — that partisan redistricting is ipso facto unconstitutional. This would change the rules mid-decade in the very decade when Democrats’ lock on national redistricting was suddenly broken — go figure.

Retirements: Republicans from a number of vulnerable seats are retiring, and it’s usually easier to win a swingy district when there isn’t a popular incumbent holding it down. Take, for example, seats like those of soon-to-be retirees Dave Reichert, R-Wash., Ileana Ros-Lehtinen, R-Fla., Charlie Dent, R-Pa., Patrick Meehan, R-Pa., Rodney Frelinghuysen, R-N.J., Frank LoBiondo, R-N.J., Lynn Jenkins, R-Kan., Darrell Issa, R-Calif., Dave Trott, R-Mich., Martha McSally, R-Ariz., and perhaps even Kristi Noem, R-S.D., and Steve Pearce, R-N.M.

To the two or three redistricting-driven pickups for Democrats in Pennsylvania, add those twelve additional seats right there, and they’re already halfway to their goal.

Special Elections: On March 13, voters will pick a replacement for Rep. Tim Murphy, R-Pa., who resigned in disgrace after his mistress called him out for pressuring her to have an abortion. Republicans are not currently optimistic about their chances in a district where the demographics would normally give them the advantage.

The fact is, Democratic voters are so much more energized right now that any Republican seat coming open in a low-turnout special election is going to be in play, no matter how putatively Republican the seat might be in a general election. And if things remain so, then Democrats will have a significant turnout advantage in the higher-turnout contests of the midterms as well.

Unified Republican Control: When one party rules Washington, it usually takes the blame for whatever goes wrong in the next election. Republicans find themselves in that very situation this year.

That’s why their only hope is for everything to go very, very right. Hence their plan of selling tax reform as hard as possible, and riding an economic wave to re-election. That’s a plan that could potentially work, but it presupposes successes that are, frankly, outside Republicans’ hands. It assumes, for starters, that the recent correction in the stock market is just a temporary hiccup. It will also require very strong economic growth for the rest of 2018, strong enough to keep voters’ minds off the incessant small outrages that have so preoccupied the political press during the Trump presidency so far.

Senate 2018

Assuming arguendo that Republicans need a miracle to keep the House, that makes the Senate all the more important. A Democratic House would mean that most of Trump’s domestic policy agenda is done for. But a Republican Senate — a distinct possibility even if Republicans do lose the House — would mean that he could still continue to replenish the judiciary with conservative judges who respect the rule of law. He may even be able make a game-changing appointment or two to the U.S. Supreme Court.

So far, only 24 Trump judges have been confirmed in all, according to the U.S. judiciary. That includes 13 important appellate court judges. Trump has 50 other nominees pending for 146 vacancies, and three more nominees for 29 scheduled future vacancies. That includes 24 existing and future appellate vacancies as follows:

  • Two vacancies on the second circuit;
  • Two vacancies on the third circuit;
  • Two vacancies on the fourth circuit;
  • Three vacancies on the fifth circuit;
  • Two vacancies on the sixth circuit;
  • Four vacancies on the seventh circuit;
  • Seven vacancies on the ninth circuit;
  • One vacancy on the tenth circuit;
  • One vacancy on the eleventh circuit.

Trump will, with some effort, be able to nominate and confirm judges for most of these slots before the 116th Congress begins next January. But a Democratic takeover of the Senate would seriously hamper his effectiveness in doing this or anything else after the coming election. With a Senate majority, Democrats could keep a new Supreme Court vacancy open  — returning the favor for what Republicans did throughout 2016 with the seat opened by the death of Antonin Scalia. But Democrats’ antipathy toward Trump is so strong, and their base’s demand for that antipathy so intense, that they could keep any number of less significant nominees bottled up as well for whatever amount of time Trump remains in office.

This is where the Republicans’ favorable Senate map comes in. With only two of their current seats in any serious danger — in Arizona and Nevada — and two or three Democratic seats teetering, they can probably keep their slim majority even in a very strong Democratic year. This is the consequence of Republicans doing so badly with Senate Class One in 2000, 2006, and 2012. They simply don’t have much left to lose.