December 5, 2022
Democrats hope to weaponize the Supreme Court's potential decision on abortion precedent in this fall’s midterms

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October arrived early in Washington.

Everyone in politics is well-versed in the art of the “October Surprise,” just before a consequential election in November. An October Surprise is typically a leak of potentially damaging information — strategically timed — to undercut a candidate, just before voters head to the polls.

Of course, we don’t know the precise motives of the extraordinary leak of the Supreme Court draft decision — in springtime. But it certainly qualifies as a “May Surprise.” A seminal leak of information so substantial it would rattle the political world.

The unprecedented leak itself is seismic for the Supreme Court. But the fault lines from this convulsion run directly from the High Court itself, under 1st St., NE, in Washington, D.C., and to the center of the United States Capitol across the street.

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Pro-choice voters abhor the leaked Supreme Court draft opinion which would torpedo Roe v. Wade. But politics is all about opportunity. Democrats hope to weaponize the decision for in this fall’s midterms. Democrats believe they can use this as a wedge against Republicans.

“Reproductive rights will be on the ballot and women will vote. They will make sure their voices are heard,” predicted Sen. Richard Blumenthal, D-Conn

Senate Majority Leader Chuck Schumer, D-N.Y., says he will force a vote soon to get all senators on the record about codifying Roe. 

“Every senator is now under the real glare of Roe v. Wade being repealed by the courts,” warned Schumer. “(They are) going to have to show which side they are on.”

U.S. Sen. Elizabeth Warren (D-Mass.) was among Democrats who gathered outside the Supreme Court on Tuesday, May 3, 2022.

U.S. Sen. Elizabeth Warren (D-Mass.) was among Democrats who gathered outside the Supreme Court on Tuesday, May 3, 2022. (Getty)

“We are focused like a laser on getting this vote shortly,” said Sen. Sheldon Whitehouse, D-R.I.

That’s not quite true. The actual vote which Schumer and others suggest is probably a procedural roll call of some sort. It’s likely one or two steps removed from a straight, up/down vote on the measure itself. So, Democrats may not in fact have everyone precisely on the record on that very bill regarding Roe. But the vote in question is probably procedural in nature.

This will naturally spur more debate about abolishing the filibuster. Progressives know it is good politics (at least for them) to stir the pot on the filibuster — even if the chances of altering it are remote. That’s why they’re again targeting Sens. Kyrsten Sinema, D-Ariz., and Joe Manchin, D-W.V., to change their positions. Democrats can make the case that flipping competitive Senate seats in Ohio, Pennsylvania and Wisconsin will inch them a bit closer to 60 votes necessary to break a filibuster. So, this becomes a campaign point, too.

But here’s the other issue: Democrats are fighting to maintain control of the Senate and hold their slim majority. Democrats, not so-subtly, intend to make the results of the leak about Senate Republicans, Senate Minority Leader Mitch McConnell, R-Ky., and former President Trump.

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“Republicans who have been longing for this day when Roe vs. Wade would be history, don’t want to own up to it now,” said Senate Majority Whip Dick Durbin, D-Ill. 

“It was a plan by Senate Republicans and Leader McConnell,” said Schumer. “Senate Republicans spent years rubber-stamping one radical Trump judge after another to the federal bench to pick away at Roe.”

U.S. Senate Majority Leader Chuck Schumer speaks to reporters following the Senate Democrats weekly policy lunch at the U.S. Capitol in Washington, U.S., May 3, 2022. 

U.S. Senate Majority Leader Chuck Schumer speaks to reporters following the Senate Democrats weekly policy lunch at the U.S. Capitol in Washington, U.S., May 3, 2022.  (REUTERS/Michael McCoy)

Democrats are now trying to blame Republicans for confirming these “Trump justices” which flipped the contours of the High Court and prompted the decision which prospectively wipes out Roe v. Wade. 

Democrats must tread carefully about dragging former President Trump too deeply into this. Many Republicans were willing to tolerate some of the former President’s antics — so long as he nominated persons to the federal judiciary who would make rulings which aligned with their politics. So, this tactic to make Trump culpable may not work with some voters.

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Former Virginia Gov. Terry McAuliffe (D) learned this lesson the hard way. He essentially campaigned against former President Trump last year. That’s one reason McAuliffe lost to Virginia Gov. Glenn Youngkin (R).

But back to Capitol Hill.

“These justices lied to the Senate by misrepresenting their views on respecting precedent when it came to decisions like Roe,” accused Schumer. “They will have to answer to the people this month. This year. And especially this November.”

So Democrats believe they have found their foil.

“The most effective strategy in politics is to run against something,” said political scientist Stephen Farnsworth at the University of Mary Washington in Fredericksburg, Virginia. “The way that some of these justices got on the Court and the discrepancy between what they said in their confirmation hearings and what they appear to be saying in this draft opinion creates opportunities for Democrats to really gin up their base. To really energize voters who might not have turned out.”

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington following reports of a leaked draft opinion by the court overturning Roe v. Wade. 

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington following reports of a leaked draft opinion by the court overturning Roe v. Wade.  (AP Photo/Anna Johnson)

Senate Democrats invented the “nuclear option” (lowering the bar to overcome filibusters for executive branch nominees) back in 2013. However, it was Senate Republicans who used the nuclear option to drop the filibuster threshold to confirm Gorsuch in 2017. Otherwise, the Gorsuch nomination was stuck.

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Plus, talking about abortion all day long is a lot better for Democrats than discussing fuel prices, inflation and the border.

“If the Democratic Party runs on a pro-choice agenda rather than the Biden policy agenda, they’re going to be in a better position,” said Farnsworth.

But Democrats believe the Supreme Court leak offers a political flotation device. It’s possible the actual Supreme Court decision in late June (if it holds up) could give them another boost.

Nonetheless, this is a “May Surprise.” Such premature “surprises” now may now be a necessity in the modern political world with early voting and mail-in balloting. But don’t the sides need to close the deal in October?

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None of the political winds have blown in the direction of the Democrats when it comes to the midterms. It may not matter whether they have a May Surprise, an October Surprise or tuna surprise. Most analysts are predicting big losses for the GOP in the House.

In other words, if Democrats do win, that will constitute a “November Surprise.”