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High Court Vacancy Triggers Big Money Ad War in Election Runup

Oct. 12, 2020, 10:02 AM

Barely three days after the death of Ruth Bader Ginsburg, people across the country were greeted with an ad teeing up the confirmation fight to come in the U.S. Senate regarding her replacement on the Supreme Court.

“You’ll hear noise from extremists about the Supreme Court vacancy,” the narrator reads, over images of Senate Democrats. “Here are the facts. Justice Ginsburg was confirmed in 42 days. Only three senators voted against her,” the ad continues, flashing an an image of Ginsburg. “Justice O’Connor was confirmed in 33 days. It was unanimous.”

That ad from the Judicial Crisis Network, a conservative nonprofit group, was one of the first to appear on TV screens, but it’s one of many bought by groups in the days following Ginsburg’s death.

“We’re in a world of political and constitutional hardball,” Michael S. Kang, a professor at Northwestern Pritzker School of Law who studies judicial elections, said. He added: “We don’t live in a time with a lot of emotional sensitivity.”

A Bloomberg Law analysis of more than 30 ad buys tabulated by the firm Advertising Analytics following Ginsburg’s death shows many are playing in swing states and those with key Senate races, putting the court yet again in the midst of a political firestorm leading up to the 2020 presidential election.

So far about $7.6 million has been spent on TV ads by groups on those advertisements. That only represents a fraction of the anticipated spending, however—groups like Demand Justice, the Judicial Crisis Network, and the GOP each pledged $10 million for their nomination fight campaigns.

Senate races this year in Alabama, Georgia, Kansas, Mississippi, and Oklahoma feature ads that tout GOP Senate candidates’ support of Barrett while emphasizing such conservative themes as opposition to abortion and support for gun rights.

Meanwhile, Democrats say this year’s confirmation drama could work more in their favor, at least in Maine and Colorado, where Republican incumbents are in danger, according to polls.

But the efforts come during an election where ad spending is hitting record highs, and there’s a risk the message gets lost.

“It’s just a difficult environment to get people’s attention,” Steve Passwaiter, vice president and general manager of Kantar’s Campaign Media Analysis Group said.

Election Strategy

The ads mentioning the vacancy run the gamut from general get-out-the-vote messages to specific attacks on senators in key races, like Sen. Susan Collins (R-Maine).

A particular target for the ad war has been South Carolina’s Senate race, where Judiciary Committee Chairman Lindsey Graham (R) is in a surprisingly competitive contest with Democrat Jaime Harrison.

An ad by Harrison’s campaign cites Graham’s past promises not to confirm a Supreme Court justice close to an election — a commitment he made after he helped block President Barack Obama’s nomination of Merrick Garland in 2016 after Justice Antonin Scalia died.

“After 25 years in Washington, Lindsey’s word is worthless,” Harrison says, facing the camera and promising to “never lie to the people of South Carolina.”

A Graham ad says Harrison wants “a Supreme Court packed with liberal judges who legislate from the bench.” The ad, on which his campaign has spent an estimated $31,019 airing, says Graham is the one standing in the way of that happening and shows a pictures of the senator with Brett Kavanaugh and Barrett.

Spending on these types of ads comes from groups including America First Policies, Women Vote!, 45Committee, Future 45, and End Citizens United.

In Florida, the Michael Bloomberg-backed Independence USA PAC spent an estimated $2.3 million, the most of any group so far in a single ad buy, telling voters that President Donald Trump is “using the Supreme Court to undermine healthcare, even during a pandemic.”

Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The GOP also plans to capitalize off the fight the same way it did in 2016, announcing recently that it will run ads in target states for the presidential election.

“The prospect of candidate Trump nominating strict constitutionalists to the Supreme Court drove turnout in 2016 and we are expecting this to be a top issue for our voters in 2020 as well,” RNC spokeswoman Mandi Merritt said in an emailed statement.

To be sure, some groups say the impending election isn’t their focus.

Carrie Severino, the president of Judicial Crisis Network, said the presidential election isn’t what’s dictating her group’s focus in various states its three ads are running. “Our goal is to get this nominee confirmed,” she said.

Demand Justice, a liberal judicial advocacy group, declined to comment on strategy.

Arms Race

The politicization of Supreme Court confirmations dates back at least three decades to Democrats’ successful defeat of President Ronald Reagan’s nominee, Robert Bork in 1987, said Charles Geyh, a professor at Indiana University Maurer School of Law, who studies judicial selection.

A People for the American Way ad from the Bork fight, for example, showed a family standing on the steps of the Supreme Court while telling Americans to encourage their senators to vote “no” on Bork’s confirmation.

Ad spending surrounding Supreme Court confirmations grew exponentially following the Republican blockade of President Barack Obama’s nominee Merrick Garland in 2016 and the subsequent confirmations of Neil Gorsuch and Kavanaugh after Trump’s election. Both triggered partisan battles in the Senate and multi-million-dollar campaigns on both sides.

Kavanaugh’s confirmation, fraught with political turmoil over Christine Blasey Ford’s accusation that he sexually assaulted her when they were in high school, for example, drew more than $10 million in TV ad spending, according to a Brennan Center analysis.

“Right now the gloves are just completely off, and the norms that we’ve had in place for a long time are just gone,” Geyh said. “There’s no pretense of merit going into this process, it’s all about political angling.”

Reversed Positions

In the current contest, ads on both sides are invoking opponents’ words during the Garland fight against them.

Fix Our Senate, a group focused on eliminating the 60-vote threshold for legislation to pass the upper chamber, released an ad using multiple speeches and appearances by Majority Leader Mitch McConnell (R-Ky.) in 2016 arguing that a seat shouldn’t be filled during an election year.

Although there isn’t an official estimate on the purchase from Advertising Analytics, Fix Our Senate said the buy was six figures.

An estimated $1,075 ad buy in Washington from 45Committee, a PAC supporting Trump, uses quotes from Ginsburg, Obama, and Hillary Clinton from around Garland’s nomination to argue that the Senate should give the nominee a vote. “How do you respect Ruth Bader Ginsburg?” a narrator asks. “Remember her wise words on Supreme Court nominees in an election year.”

Some of the ads from the Garland cycle, could easily be mistaken for ads supporting the opposite party during this cycle, said Douglas Keith, counsel at the Brennan Center’s Democracy Program.

He pointed to a 2016 Judicial Crisis Network ad, for example, that said the American people should have a say in who becomes the next Supreme Court justice by voting in the election.

“You could very easily strip their name off the end of the ad and put in a group from the left this time around,” Keith said.

Senate Races

References to Supreme Court confirmations are also appearing in ads in key Senate races, mirroring something seen during the Kavanaugh confirmation.

Republican Sen. Kelly Loeffler is “leading the fight for a pro-life conservative Supreme Court,” says in an ad sponsored by her campaign running in Georgia.

Democratic groups are running ads that accuse incumbent Republican Sens. Susan Collins (Maine) and Cory Gardner (Colo.) of endangering abortion rights and health care coverage through their past support of judges nominated by President Donald Trump.

Collins, one of the few moderate Republicans left in the Senate, is the most frequent target of ads that mention the Supreme Court, according to Advertising Analytics data, and many of those ads criticize the decision to support Kavanaugh’s confirmation.

An estimated $73,710 ad buy in Maine from Democratic competitor Sara Gideon targets Collins over Kavanaugh and other Trump-appointed federal judges, and criticizes her for waiting to take a position on Barrett “until she knew her vote didn’t matter.”

To contact the reporters on this story: Madison Alder in Washington at malder@bloomberglaw.com; Kenneth P. Doyle in Washington at kdoyle@bgov.com

To contact the editor responsible for this story: John Dunbar at jdunbar@bloomberglaw.com