Trump’s lasting judicial legacy

This Week: Election Review, Part II

  • How Trump and McConnell built a lasting judicial legacy
  • Montana, New Hampshire state governments back in Republican hands
  • 2020: a year of Senate Democrats’ self-delusion

Trump’s lasting legacy: This week, both the inevitability of Joe Biden’s victory is sinking in. But so has the Democrats’ failure to make the gains they would need to erase Trump’s legacy have set in. Trump’s campaign legal team has identified several instances of irregularities, and there is no doubt that a substantial amount of fraud occurred in this election, as it always does. But there will not be enough to overturn the apparent result.

What does this mean? Again, it probably means a very much chastened Biden administration, limited in its ability to effect lasting change. Like President Obama, Biden will be limited to what he can accomplish with his phone and his pen, such that nearly everything he does can be undone by the phone and the pen. 

Assuming Republicans manage to win at least one of the two special Senate elections in Georgia next month, Trump’s basic legislative agenda of tax reform and the diminution of Obamacare through the effective abolition of the individual mandate will endure. In that case, Senate Majority Leader Mitch McConnell, R-Ky., will also be the one deciding how radical Biden’s nominees can be, and how many judges Biden gets to appoint for at least his first two years. The latter question is especially important to the nation’s future, and it speaks to McConnell’s adept  long-term strategic planning.

Beginning in 2015, in retaliation for Democrats’ abolition of the Senate filibuster for judicial nominations, McConnell consciously capped the total number of judges Obama would appoint to almost exactly the same number as George W. Bush had gotten through. This decision paid dividends. Not only did it limit Obama, but it resulted in a very high number of judicial vacancies at the time Trump took office — 18 openings in the Circuit Courts of Appeals and 90 in the District courts. In contrast, Trump’s thoroughness in filling nominations with the help of the GOP Senate could leave Biden with something close to zero circuit court and at most two dozen district court vacancies. 

Even aside from his three Supreme Court appointments, Trump’s number of confirmed judicial nominees has been extremely very high for a single presidential term. Depending on some lame-duck confirmations, he will have successfully installed 53 to 55 of the total 179 Circuit Court judges, and 168 to 195 of the 677 federal District Court judges. One major reason for Trump’s prolific numbers is that so many Democrat-appointed judges had chosen to retire under Obama, who could never replace them, given the Republican Senate majority that closed out his term beginning in January 2015 and continues today. Moreover, the uniform quality of Trump’s nominees seems to be truly a cut above that of the Bush-era nominees. 

Republicans would obviously prefer to have prevailed in the presidential race. They have to be at least a bit alarmed about their electoral prospects after their fourth straight loss of the presidential national popular vote — their seventh such loss in the last eight presidential elections. But considering those adverse electoral outcomes, Trump’s presidency restores to the judiciary, and especially to the Supreme Court, a distinctive advantage for the center-right. The effect of Trump’s 2016 triumph will thus endure for decades. 

Election 2020

We continue our survey of key states in the 2020 election, which will continue in the next installment.

Maine: Here is a state where Trump had overperformed in 2016, losing by only four points. He fell off rather badly in 2020, losing by ten, but he still accomplished what his campaign set out to do here, however, carrying the state’s second congressional district, worth one electoral vote. Trump took just 45% of the overall vote statewide, but Maine remains a state that Republicans should target in the future.

Meanwhile, against all expectations (including our own) Sen. Susan Collins, R, won easily by an eight-point margin. Her win is Exhibit A in the case against the polling industry in the 2020 election. She did this despite being outspent more than two-to-one by her Democratic opponent, Sara Gideon

Collins’ most controversial act of this last six-year term was her vote and speech to confirm Justice Brett Kavanaugh — something for which the Left had ruthlessly targeted her. Once again, this race proved that voters are utterly unbothered by their senators voting to confirm conservative or constitutionalist judges, even in Democratic-leaning states. Collins’ victory also demonstrates a rare case of widespread ticket-splitting in 2020, as this result implies that at least 43,000 Mainers (and possibly more) backed Collins without voting for Trump.

Collins’ success was quite a shock, but House Republicans did not manage to knock off Rep. Jared Golden, D, the moderate member representing northern Maine, who had voted for one of the two articles of impeachment against Trump and against the other.

Michigan: In the end, the Great Lakes State wasn’t as close as Trump had hoped. His 150,000-vote loss is far too large for any court to overturn based on irregularities. Republican Senate candidate John James also came up short, but by less than 100,000 votes. Republicans made a nominal gain as Pete Meijer narrowly reclaimed the seat left by the retiring Rep. Justin Amash, who had left the Republican Party. 

The big prize here for Democrats was the state legislature, and they failed to claim either chamber. This deprives them of the ability to remap the state’s House and legislative seats for the coming decade. 

Minnesota: Republicans talked a big game here, and they had us fooled, but they fell flat. President Trump, who had come very close to taking the state in 2016, did not come so close in 2020. And the Senate race, despite a late poll showing some hope, wasn’t too close either, as Jason Lewis fell a solid five points short of defeating Sen. Tina Smith, D. Republicans also failed to regain Lewis’s south suburban district, as Rep. Angie Craig, D, held on.

There were two silver linings for Republicans, however. The first was their retention of the state Senate, which will prevent Democrats from completely controlling the redistricting process. The other was Michelle Fischbach’s 13-point defeat of longtime Rep. Collin Peterson, D.

Montana: Rep. Greg Gianforte’s win means that Republicans have finally reclaimed the governorship of Montana for the first time since 2005, and will control all elected branches of the state government. Matt Rosendale, who had fallen short of defeating Sen. Jon Tester in 2018, won the state’s at-large House seat and will keep it in Republican hands for another term. Finally, Republican Sen. Steve Daines held off a strong challenger in Gov. Steve Bullock to win the state’s closely-watched Senate race by a surprisingly strong ten points. 

Nebraska: No one was surprised by Republican Sen. Ben Sasse’s big win. The big stories here were Republicans’ narrow hold of the state’s Omaha-area second congressional district and President Trump’s loss of that district and its separate electoral vote.

New Hampshire: This is another state where Trump fell off from 2016. Despite Trump’s seven-point loss here, Republicans did quite well at the state level. New Hampshire’s state House and Senate were the only two state legislative chambers in America to change hands in the 2020 election. Gov. Chris Sununu was the top vote-getter in the state, winning re-election by 32 points. Surely, Mitch McConnell is already thinking of how to induce Sununu to run for Senate against the state’s junior Democratic senator, Maggie Hassan, in 2022. But it is worth noting that, on the federal level, the Granite state has gone this century from having two Republican House members and two Republican senators to having all Democrats in those positions. 

New Mexico: Republican Yvette Herrell defeated Rep. Xochitl Torres Small, D, in the state’s competitive but GOP-leaning southern congressional district. New Mexico is definitely a Democratic state at this point, but it is worth noting that the Republican Senate candidate, Mark Ronchetti, came within six points of defeating Ben Ray Lujan in a race no one was watching. Contrast the amount of attention that Ronchetti got with the Democrats who suffered larger losses in Montana, Iowa, and Maine — just to name a few examples of races that the media or Demcoratic donors and pollsters hyped up, it turns out groundlessly. This race, while insignificant in the grand scheme of things, helps illustrate the amount of self-delusion from which Democrats suffered in 2020.

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