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The Long, Sophisticated Fight to Come Over the Supreme Court Opening

Kirk is the only Republican senator in a tough re-election race to not take a position on whether Obama should fill Scalia's seat on the Supreme Court or leave it to his successor. (Tom Williams/CQ Roll Call)
Kirk is the only Republican senator in a tough re-election race to not take a position on whether Obama should fill Scalia's seat on the Supreme Court or leave it to his successor. (Tom Williams/CQ Roll Call)

Republican and Democratic Senate campaigns have already clashed – fiercely – over when and how to confirm a new Supreme Court justice.  

But those early rhetorical salvos are only the beginning of what will be a sustained effort to take advantage of the court’s sudden opening, one that operatives from both parties say could reshape fundraising, turnout operations and targeted media to diehard partisans and swing voters alike. The blunt message from some of them: The terrain of the 2016 Senate election changed when Antonin Scalia died, and now it’s up to the party committees and their allied campaigns to recalibrate their strategy and tactics or be left behind.  

“This gives campaigns the opportunity to dust off some other arrows in their quiver that may not have been relevant before,” said Matt Oczkowski, a GOP strategist who works at the behavioral-analytics firm Cambridge Analytica. “A sophisticated campaign is going to know what issues motivate their swing audience, or they should at this point, and they should leverage how this can motivate their base, not just a donation perspective but turnout perspective.”  

By Tuesday, the battle lines in most competitive Senate races had been drawn. With the exception of Sen. Mark S. Kirk of Illinois, all of the vulnerable Republican incumbents up for re-election in 2016 – Sens. Patrick J. Toomey of Pennsylvania, Rob Portman of Ohio, Ron Johnson of Wisconsin, and Kelly Ayotte of New Hampshire – had said they would not support the confirmation of a new Supreme Court justice until a new president took office. (Kirk has still not announced his approach toward replacing Scalia.) Democrats pounced on the refusal, saying it was an abdication of duty to make such a decision before Obama even picked a nominee.  

In the early going, both parties are confident they can sway the public to their side. But that’s only the broader, macro-level argument each side, and each campaign, will make. Just as important, potentially, is the cornucopia of messages tied to the Supreme Court fight that will be delivered to smaller, targeted groups of voters.  

Because a new Supreme Court justice could tip its ideological balance, any topic that has or could come before the court suddenly takes on new importance – a nearly unlimited supply of economic, national security, and social issues given the Supreme Court’s broad purview. To some Democratic strategists, these kinds of issues – like abortion-rights – are ready-made for the large TV buys that are traditionally among the campaigns’ most important decisions.  

But with ever more sophisticated models of the electorate, with a growing set of tools to reach those voters, campaign operatives say there is a vast opportunity to use single issues to cajole specific groups of voters. Some of the ways campaigns will take advantage seem obvious: Democrats could motivate single women, a key part of the party’s coalition that traditionally votes at a low rate, to turn out on Election Day if they bombard them with warnings about the repeal of Roe v Wade . The ads could appear on a variety of media, like online TV services or Twitter.  

But strategists caution that other ways to motivate voters might not be so obvious – which is why many of the Senate campaigns, though a combination of polling and other analytics-driven tests, are racing to determine which issues in the new political landscape could offer them a key if unexpected advantage.  

“The folks with the more sophisticated campaigns are going to much better leverage this,” said Oczkowski, who was the chief digital strategist of Scott Walker’s presidential campaign. “Sending out a blanket message to your email list is not going to be as effective as targeting voters individually or certain demographic groups. The campaigns that are quote-unquote ‘spraying and praying’ are not going to be as effective.”  

As one Democratic strategist, who requested anonymity to speak candidly, pondered, the list of issues to use – and where to use them – is nearly endless.  

“You can make it about immigration in Nevada,” the strategist said, referencing the highly competitive open-seat battle between GOP Rep. Joe Heck and presumed Democratic nominee Catherine Cortez Masto. “You can make it, heck, you can make it about anything. This is big.”  

It’s not just votes they could win over, either – it’s dollars. Raising money for Senate campaigns amid a presidential race featuring two competitive primaries is difficult, but operatives are hopeful that a looming confirmation fight in 2017 can refocus attention on which party controls Congress’s upper chamber.  

“It helps us when we’re talking about the Senate with donors, particularly, from a fundraising perspective,” said one senior GOP strategist, granted anonymity to speak about party strategy. “Everyone is focusing on the presidential shiny object, and this sort of brings the senate back into the mix.”  

Senate races will still be overshadowed by their presidential counterpart in the general election, especially when so many Senate battlegrounds – like those in New Hampshire, Wisconsin, Pennsylvania, Ohio, and Florida – double as key contests in the presidential race. And it will be no different this fall, when each of the party’s presidential nominees – with vastly more resources at their disposal – target specific voter blocs over the Supreme Court in many of the same ways the Senate campaigns will.  

But Republicans say they see an opportunity to use the Supreme Court case to keep conservatives activists on board with the campaigns of senators who have disappointed them on other issues. It’s been a concern for some Republican campaigns: Toomey, for instance, drew the ire of conservatives in 2013 when he supported expanding gun-sale background checks. More recently, Ayotte has angered some home-state Republicans for her continued support of the Export-Import Bank of the United States and after forming an informal new group of Republican senators worried about climate change.  

For Ayotte, her breaks from orthodoxy have led to rumblings that she could face a primary challenger or even have some conservatives refuse to back her in a general election. But Republicans are confident those threats will die down as control of the Supreme Court looms.  

“That allows some candidates to motivate their base even though they might differ on other issues,” said Ryan Williams, a Republican operative and strategist for the New Hampshire GOP. “They can go back to base voters and say, ‘You may not agree with me on every issue, but I’m going to vote for a strong judicial nominee who won’t legislate from the bench.’ That will motive base voters because there’s so much at stake.”  

Contact Roarty at

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