How Does The Presidential Election Affect The Supreme Court and Betting Odds
2020 Update: With the recent death of US Supreme Court Associate Justice Ruth Bader Ginsburg on Sep. 18, 2020, Trump's opportunity to nominate, confirm, and appoint a third conservative justice to the bench has generated significant betting action at the best online sportsbooks, and it's thrown another monkeywrench into the 2020 Presidential election. This article was originally written after the death of Justice Antonin Scalia in 2016, and it takes on new relevance for a much more politicized – and relevant – Supreme Court selection process. RBG's death has ramifications across the (betting) board, and we explain why in the text below.
One of the most prized functions – politically – that a sitting President has is the nomination of Supreme Court Justices. These seats are filled for life, and on the occasion that a SCOTUS retires or dies in office, it is the President's constitutional duty to nominate a new Justice for the nation's highest court.
However, there is constant argument on the proper "tradition" to fill those seats, despite the rules being clear. With the passing of Associate Justice Ruth Bader Ginsburg on September 18, 2020, bot Republicans and Democrats are in a battle over the procedure to nominate and confirm her replacement.
In 2016, one Supreme Court seat opened after Justice Antonin Scalia’s death at the age of 79. Scalia was considered the most constitutional conservative on the Court, and given that he passed during the final year of President Barack Obama’s 2nd term, there was a rush to appoint his successor. This was blocked by a Republican Senate, which publicly opted to wait until the next President was sworn in before going forward with hearings and confirmations.
Whether or not this strategy helped Trump win the 2016 election upset (where Presidential election odds skewed heavily in favor of Hillary Clinton) in unknowable, but it's likely to have changed a few votes in his favor. In this way, the status of the Supreme Court can have an effect have on Presidential odds the same way that a sitting President can affect Supreme Court odds.
Why Are Supreme Court Justices Important For Presidential Election Campaigns?
A Supreme Court Justice holds their position for life or until they choose to retire from their seat. Typically, when a Supreme Court Justice dies or retires, the sitting President is obligated to nominate an individual who is then reviewed for their qualifications by the Senate and afterward voted upon.
In 2013, Senate Democrats, led by Harry Reid, removed the 60-vote requirement to confirm lower court nominees. This was characterized as the "nuclear option," allowing the Senate to confirm judges to federal positions with fewer votes than traditionally needed. Once the Senate Democrats lost power in the upper chamber, Senate Republicans did the same for Supreme Court nominees, meaning that the Senate can confirm a SCOTUS Justice with a simple majority vote. This is the case now, and it has helped the Trump administration appoint two Supreme Court Justices.
The debate now rages on whether or not this is "fair," which seemed to have been entirely ignored by the media in 2013. With the shoe on the other foot, however, it seems that Reid is finally recognized as having opened a Pandora's Box that would make Presidential SCOTUS nominees a foundational part of each campaign going forward.
Indeed, in 2016, before he was ever elected, Trump released his list of Supreme Court picks as a selling point for his potential administration. Given that Supreme Court judges typically serve for multiple Presidential terms, this has become a way for a Presidential candidate to broadcast his or her intent re legacy and policy. It most certainly affects at least some voter turnout, and election bettors now pay closer attention to the panel of judges any possible candidate for President puts forth.
In 2016, then-Candidate Donald Trump promised conservative voters if he became President he would appoint a conservative judge to the Supreme Court. Of course, this is not unusual. No President picks a nominee that is not in line with the President's party platform. Trump continued by stating he would appoint a Justice who would block unconstitutional gun ownership restrictions and who would end federal abortion rights made possible by the Supreme Court interpretation of the Roe v. Wade case.
Then Candidate for the opposing party, Hillary Clinton, also made various campaign promises involving the nomination of a new Justice which would reverse a past Supreme Court decision overturn Citizens United, as well as fiercely preserve the federal right to taxpayer-funded abortions.
The Supreme Court is the highest court of the United States, whose policies impact the lives of all those living in the nation. Lifetime Justice appointments can affect the ideological makeup of the Court if enough Justices lean one way or another. Therefore, the new Supreme Court Justice decision became one of the most important campaign points of the 2016 Presidential Election. Trump would pick conservative judges, and Clinton would pick liberal judges. This is, and always has been, the status quo.
While the Supreme Court makeup has always reared itself as an election issue, the death of Justice Scalia in 2016 forced the consideration of filling the seat to be forefront. The issue in 2016 provided opportunities to fill the ninth seat on the bench. However, an aging Supreme Court also meant the potential President would have more than one opportunity to nominate a party-loyal Justice. After winning, Trump filled two Supreme Court seats, and with the death of Ruth Bader Ginsburg, he has the chance to fill three in his first term alone.
Because Justice nominees tend to be more ideologically loyal to the President who supported them, the President is capable of having a lasting impact on the nation through the Supreme Court. This is currently the fear of the left and the joy of the right as Trump seeks to appoint a third SCOTUS Justice.
Significant Supreme Court Seat Occupancies During The Trump Administration
After Justice Scalia’s death in 2016, eight Justices survived him. Four had liberal affiliations and four had conservative affiliations. The makeup of the Supreme Court is a delicate balance which can impact their perspective on critical issues which Justices must make regarding any case brought before them.
After the 2016 Presidential Election, Donald Trump became President and nominated Neil Gorsuch to replace Scalia. The Senate approved of the Justice nominee on April 7, 2017, and confirmed Gorsuch's appointment. Little over a year later, on June 27, 2018, Justice Anthony Kennedy announced his plan to retire from the Supreme Court.
Justice Kennedy stated his retirement would begin July 31, giving President Trump another opportunity to nominate another Justice. Supreme Court Justice Kennedy acted as a key swing vote in nearly all SCOTUS cases.
President Trump drew his next nomination from a list of 25 potential nominees. Trump’s first Justice nominee was runner-up to Neil Gorsuch, Brett Kavanaugh. Kavanaugh was relentlessly smeared by the media (a la Clarence Thomas a generation earlier), but was ultimately selected to be the President’s second Supreme Court appointee.
How Supreme Court Decisions Affect Political Betting Odds
U.S. Supreme Court Justice positions are typically high-profile decisions. To complement massive media coverage of the event, oddsmakers for sportsbooks and legal political betting sites create betting odds regarding Justice nominees, nominee confirmations, and Justice retirements. Betting platforms also tend to offer wagering options on high-profile SCOTUS case decisions.
During Trump's second go at selecting a Supreme Court Justice, for example, Bovada opened political wagering propositions for nomination picks. Sportsbooks tend to arrange these odds based on bettor favorability, not possible likeliness. At one point, Kavanaugh’s odds to be selected by Trump stood at +175, Thomas Hardiman’s odds were at +350, and Amy Coney Barret’s odds were at +450. (Barrett is now the favorite to replace Ruth Bader Ginsburg at most legal online betting sites.)
However, betting markets and odds are affected by numerous factors such as consideration of the nominee's age and willingness or capability to serve for a long period, coupled by how well they align with the sitting President's views and various party platforms. Scandals also play a part, as was the case with Kavanaugh, who was accused of sexual misconduct. Despite a lack of evidence and pushback from actual witnesses that such an event never happened, this led to an FBI investigation that slowed proceedings.
The allegations ultimately affected the political betting market and Kavanaugh’s odds.
Sportsbooks quickly jumped on the option to wager on odds for Kavanaugh’s nomination withdrawal, which were once at +300 and jumped to +130 after the allegations went public. However, bettors wagering on this option lost once Kavanaugh was confirmed.
This scandal angle, while not a new one for bettors tuned into Supreme Court vacancies and the politics that go into filling them, is assured to be prominent going forward. Now, a potential Justice must not only be scandal-free (or as nearly as possible, because anyone can make up anything and get press these days), but they must also be viewed as politically difficult to touch by either side of the aisle.
This, for example, is why Trump is guaranteed to pick a woman to replace RBG, and it's why the current betting odds (via BetOnline) all favor women at the top of the list. Identity politics demands a woman for the post, and the second favorite at legal betting sites is a Hispanic judge. The current odds for who will replace Ruth Bader Ginsburg on the Supreme Court are as follows:
2020 Supreme Court Justice Odds
Vegas Odds For Next Justice To Be Appointed To The Supreme Court
- Amy Coney Barrett -250
- Barbara Lagoa +125
- Joan Larsen +1200
- Allison Rushing +1500
- Britt Grant +2500
- Amul Thapar +3300
- Thomas Hardiman +5000
- Ted Cruz +7500
- Tom Cotton +10000
Supreme Court Justice Vote By Election Day?
- No -300
- Yes +200
Supreme Court Justice Vote By Inauguration Day?
- No -150
- Yes +110
Why Trump Should Nominate A Supreme Court Justice To Replace RBG
While the media – along with Senate and US House Democrats (who are threatening another Presidential impeachment) – is in hysterics to try to convince the American public that it would be a threat to America and patently unconstitutional for Trump to nominate a replacement Justice this close to an election, there is no law that prevents this, and there is no tradition that prevents this. Indeed, in Ginsburg's own words when pressed on the issue in 2016, the New York Times asked her whether the Senate should wait on the election before taking up any SCOTUS nomination. Ginsburg balked at the idea.
“[Voting on Justices is] their job. There’s nothing in the Constitution that says the president stops being president in his last year.”
Of course, because the GOP held the Senate, they played politics (as everyone expects all politicians to do), and they blocked the nomination of Merrick Garland. Trump won the election, and the Senate took up hearings on his nominees to fill the seat.
Well, in 2020, the US Senate is still controlled by the GOP, and the lack of a filibuster – which was a gauntlet thrown down by Democrats, not Republicans – means that the upper chamber needs just 51 votes for confirmation. There is nothing to delay this, and with Trump's all-female list of nominees, smear campaigns against them will be a hard sell and potentially politically damaging for the accusing Party. In other words, Trump holds the trump card here, and he has every right to nominate a Justice.
Another reason to do so is simply this: The 2020 Presidential election is sure to be contested in numerous states, with several long-running lawsuits destined to put a stay on any results in major battleground states (several of which have already extended their vote-counting deadlines by up to two weeks past November 3). A 4-4 deadlock in the Supreme Court with a Presidential Election on the line would lead to significant protests and a further destabilization of the nation.
And then there's Mitt Romney, the Republican Senator from Utah who actually voted to impeach President Trump:
"My decision regarding a Supreme Court nomination is not the result of a subjective test of ‘fairness’ which, like beauty, is in the eye of the beholder. It is based on the immutable fairness of following the law, which in this case is the Constitution and precedent... [The] Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.”
Finally, if Trump doesn't nominate a Supreme Court Justice given this historic opportunity to appease his base, he risks losing the 2020 election outright. In this way, a President's election odds can sink if he or she fails to achieve perhaps the largest and most crucial task presented them by their constituents. Additionally, this can affect US Senate betting odds as well. For example, if Romney – or any other GOP Senator (like Maine's Susan Collins) – votes "no" on confirmation, their careers could be over.
Why Trump Should Not Nominate A Supreme Court Justice To Replace RBG
The arguments from the left on why the next President should be the one to nominate Ruth Bader Ginsburg's replacement essentially comes down to the fact that the GOP-controlled Senate delayed confirmation hearings on Obama's lame-duck nomination of Merrick Garland in 2016.
But again, this is traditionally the case: When the President and the Senate are of the same party, these last-year nominations tend to be confirmed (as has happened over a dozen times in history), while when the parties are in opposition, the votes are delayed. It's not much of an argument, but it's the argument currently being peddled.
For Trump, there is literally no reason not to nominate a replacement for RBG on the bench. For the left, any and all "arrows in the quiver" (as stated by House Speaker Nancy Pelosi, who has no say in this vote) will be used.
The only possible reason Trump could conceivably have for stalling a nomination past the election is to try to sway left-leaning undecideds to his camp. And that is a shady calculus. Nobody is going to change their vote to come into the Trump fold if the President delays his SCOTUS pick. On the other hand, many voters on the fence might bail on Trump's conservative image and either abstain, vote third party, or even vote Democrat in the upcoming general election.