What The Roe Leak Does and Doesn’t Mean for The Midterms + What Happened In Ohio…
Hello Hackaroos,
Wow… so much afoot we needed a second day to process it all. We have the blockbuster leak from the Supreme Court indicating it is very likely the Court will overturn Roe and… last night’s big election results in Ohio.
So, let’s begin!
The Leak Felt Around the World…
GIBBS: Obviously the leak from the Supreme Court this week was a political earthquake. First and foremost, Roe has been the law of the land since 1973. If the Court follows through and overturns it, 27 states are likely to restrict a woman’s right to choose. Many of those states will not have any exceptions, even for rape or incest (let that one sink in). Quite simply, a huge deal. There’s been a lot of conjecture that this completely changes the politics of the midterms this year. While I think it will have a sizable impact, I think it is too early to say that this in and of itself upends everything. I think the likeliest scenario is that a group of people who had not been paying attention to, not altogether interested in voting in, or quite frankly, had become so disenchanted with the way things had been going that they weren't intending to actively participate in the 2022 elections, are energized to vote in a way that they probably weren't 48 hours ago. I'm not ready yet to declare that it changes the entire calculus. I think that Presidential approval is most likely to still drive the election and I think inflation will still be the dominant issue. Nevertheless, this decision would provide another opportunity as I have repeatedly yelled from my apparently not large enough soapbox for Democrats (and even some moderate Republicans in the Senate) to get into a fight about codifying Roe v. Wade. Regrettably, in the face of this decision, that won't pass in the Senate because there just aren't enough votes to overcome a filibuster. But again, if you wanted to more greatly define both what the election is about and who it should be about, then this is a great place to start a fight.
MURPHY: Big stuff and a lot of thoughts. First, it’s pretty lame to see the GOP only commenting on the leak. But still, the leak is a big deal. Never happened before and it shatters the ability of the Court to have some privacy while they hash things out. This is not a step forward for our country. Now, on to the politics. This is a big shake up of the midterms. Now, I still think the economy will be the number one issue and that bodes very poorly for Joe Biden and the Democrats. But the huge fight ahead gives the Democrats a big new hammer to try to get on offense with. My guess is the following will happen. A huge surge in small-dollar Dem fundraising. And money in campaigns… is ammo. It’s also likely there could be a surge in younger voter turnout for the D’s. Those finicky younger voters are the hardest to turn out in the midterms and have, to date, shown frustration with Joe Biden and the D’s. This could change that. (Remember the most pro-choice voter group of all is young… men.)
Note to cable news bookers. Why are pro-life women invisible on cable news, particularly on CNN and MSNBC? Just saying, a bit of balance to the argument perhaps?
Now back to the politics. A Roe repeal will be very useful to the Dems in the suburbs, which were the key to both Biden’s victory in 2020 and the House victories of 2018. In pro-life rural America, not so much, but the R’s are already in the catbird seat there. There will also be trouble in the country club $-raising wing of the GOP. Smaller dollar donors are a bigger deal now, but there is still a lot of money raised by local GOP pols among that cohort and it’ll now split. Watch for employee-driven Hell in public companies; asking for their PACs not to donate to pro-Roe overturning politicians, read the GOP.
So net-net, good for the Dems at a time they’ve been in the hole. But again, I’ll bet dollars to donuts the economy will still be the biggest factor on election day.
GIBBS: Well, as we step back, it is pretty remarkable that a Supreme Court, in a country where 60% or more of the American people support a woman's right to choose, is both disregarding that and rolling back rights that many had come to believe were strong and sacrosanct for more than half a century. I’m not a lawyer, but a kind of cursory reading of rolling back something like Roe almost certainly puts into play a lot of other rights people believe they have that this Court could roll back – everything from same sex marriage, gay rights and even interracial marriage, devolving those down to the state level now seem far more likely than ever before. This has been coming since Conservatives took a 6-3 advantage in Court membership.
And while we are at it, where are all the current Justices who as nominees sat in front of the Judiciary Committee and in private meetings with Senators who told us this was settled law? I'm happy to read a newsletter on the utility of any future Supreme Court hearings in front of any committee if none of the answers hold for more than a couple of years. This is a huge decision by the Court, but also a huge decision for the Court. I’m not sure rolling back rights is a recipe for anything other than disaster for this institution going forward.
MURPHY: That is one huge aspect of all this. For the last few decades the Court has (generally) been in the business of expanding rights. Now, it seems, they are pulling back rights. That’s a new thing to Americans and I predict a growing intuitional backlash against the Court itself. People don’t like things they like being taken away and 65% of the country is happy with Roe as is. As we are in the age of questioning legitimacy, of election results, of news “facts,” of just about everything… why not the Court itself? It’s not a good thing, but I think it'll happen and grow.
Finally, I think the next big battle will be – as Gibbs recommends – on the Senate floor. I think the public surge of this is going to be huge and the pressure of the D’s to blow up the filibuster to pass a simple majority abortion rights bill will be very powerful. I even think there is a good chance it could happen. I know pro-life Senator Joe Manchin is still hanging out on No Way street re; the filibuster, but who knows what GOP pro-choicers Susan Collins and Lisa Murkowski might do. Watch this space.
Finally, a sad note. I miss the days when we could have a sober debate about constitutional law. The Roe issue is about abortion in the public mind and in its impact. But the true debate is Constitutional; federal or state. Roe critics have a legit argument about the clunky nature of the Roe decision. It was a pretzel twist to answer the country’s interest in federalizing abortion rights. But now, it’ll be an axe fight at high volume. For my favorite take on the larger question of why blowing Roe is not at all conservative, check out this excellent column from Bret Stephens.
GIBBS: As a press person, I'm also fascinated by the leak part of this. I readily understand that the substance of the draft opinion is the main thrust of the news, but make no mistake that documents like this don't leak in Washington, particularly in a Supreme Court without an agenda by whomever leaked it – whether it's the liberal side, wanting to galvanize the world against what's coming or, more plausibly, the conservative side, looking to lock in five votes, and telling the world that it in February those five votes already existed and here are their names. We'll know more about this presumably when the leaker either identifies him or herself or an investigation leads us to who that person is, but make no mistake, the leak is absolutely part of the story. It is not ancillary.
Does What Happens In Ohio Stay In Ohio?
MURPHY: It’s Vance in Ohio. He won the GOP nomination, propelled by a vital Trump endorsement (and a wealthy silicon valley friend, Peter Thiel). I was pulling for sane post-Trump conservative Matt Dolan who had a good final surge, but alas not enough. So now, Vance starts as a clear front-runner in the Ohio Senate race. I liked Vance a lot better in his Never Trumper days when I foolishly thought he actually believed in a few things. Whoops. A grim night, but it could be argued that Mandel was even worse. Too close to call in my estimation. The Dem’s nominated Rep Tim Ryan, a lunch bucket Democratic with potential appeal, but with Biden’s bad numbers…. What do you think Gibbs?
GIBBS: Like it or not, this is a big win for Trump. Vance had tons of Peter Thiel’s money, but just a month ago he sat in 3rd place in most Ohio polls, destined for defeat. The former President, and his son, Don Jr., who campaigned for him relentlessly since his father’s endorsement, are the winners last night. That slipping Trump grip on the GOP? Not so fast, folks. Doesn’t mean every Trump endorsed candidate will win (Georgia is going to sting a lot when Trump loses and loses big), but this one is clearly his win. To say the state of Ohio has changed would be a dramatic understatement. In 2008, Obama won this state by 4 percentage points. In 2020, Trump won it by 9. Just look at the current Senator Rob Portman’s candidate. Portman represents the governing wing of the GOP (or what little remains of it). He’s been a Congressman, he served as the U.S. Trade Representative and led the Office of Management and Budget under George W. Bush. After two terms as a Senator, his candidate, Jane Timken, finished 5th with just 6% of the vote. This state has changed not just for Dems but also has seen enormous change inside the Republican Party as well. And that’s where I want to leave this edition of the newsletter. J.D. Vance, now the presumptive favorite to win this seat in November, is caricatured mostly as a guy who was a fierce anti-Trumper turned Trump endorsee. But if you dig into a lot of what he’s saying out there on the campaign trail and in interviews, there’s a reason his populist nationalism attracted the support of Tucker Carlson. No, this is not your father’s Republican Party. This is something very, very different.
TIDBITS:
MURPHY: A bit of happy news; saw a poll today with NC-11 Congressional screw-up Madison Cawthorn is dropping like a cement block in his reelection primary against a field of Enough With This Nitwit candidates led by State Senator Chuck Edwards. Cawthorn is behind Edwards now and flailing. Still time to go but a promising indicator.
See you on Friday!
Murphy and Gibbs