With Little Leverage on Court Pick, Dems Eye Plan B
When Supreme Court Justice Anthony Kennedy announced his retirement last week, Democrats immediately rallied together in urging their colleagues to delay the confirmation of a successor until after the midterm elections. Senate Majority Leader Mitch McConnell should follow of his own rule of refusing to consider a high court nominee in an election year, they reasoned.
But that rallying cry quickly met reality. Democrats know that McConnell, given the opportunity to shape the future course of the court, would never indulge their request, allegations of hypocrisy be damned. And even if he did, Democrats would have engaged in a risky gambit, since their chances of increasing their numbers in the Senate this November are slim, given the 2018 map. Waiting until after the midterms would hardly guarantee a better outcome for them — and could do more to rally otherwise unenthused conservative voters.
Without procedural leverage, Democrats are focused now on keeping their own caucus of 49 senators together in opposing whomever President Trump nominates while aiming to sway a couple of moderate Republicans. And they are already forming a campaign around the warning that the next justice could vote to overturn Roe v. Wade and completely gut the Affordable Care Act. The message is intended to galvanize the base, of which women in particular have proven to be a mobilizing force, and put pressure on red state Democrats and GOP senators like Lisa Murkowski of Alaska and Susan Collins of Maine, who voted against the repeal of Obamacare.
"There's no procedural silver bullet," tweeted Adam Jentleson, a former aide to Sen. Harry Reid. "The most important Q is whether Ds have the will to fight against overturning Roe v. Wade in an election year where women are driving Dems' strength...Lock down 49 [Democratic votes] & fight like hell."
In an interview with “Fox News Sunday,” Senate Democratic Whip Dick Durbin said a woman’s right to choose is “the fundamental issue here. ... If one or two Republican senators believe this choice [for the court] is out of the mainstream, then we could have a very serious issue before us on confirmation."
But just keeping Democrats united figures to be a monumental task, let alone persuading any moderate Republicans to vote with them. Democrats are defending five U.S. Senate seats this year in deep red states where Trump remains popular. Three of those incumbents — Joe Donnelly of Indiana, Joe Manchin of West Virginia, and Heidi Heitkamp of North Dakota — crossed the aisle last year to support now-Justice Neil Gorsuch. In states such as theirs, proven ability to work with Trump is considered currency with constituents. And while they held with the caucus to keep Obamacare in place, they and others have crossed over on other issues and nominations. And if Republicans hold together in support, they will have little political cover.
"It's going to be a tricky calculus for leadership," says Jim Manley, another former aide to Reid. "Given the current rules of the Senate, there's not a lot Democrats can do to block whoever Trump nominates. The hope is going to be able to pick up a couple of Republicans, but I can't imagine we are going to be able to keep all the Democrats together."
Heitkamp, Manchin, and Donnelly met with Trump at the White House last week, along with Murkowski, Collins, and Judiciary Chairman Chuck Grassley. So far, they are in wait-and-see mode. But they have expressed concerns in line with those of Democrats.
"I told the president that he has a chance to unite the country by nominating a true non-ideological jurist who could gain strong support from senators on both sides of the aisle, rather than create more divisions," Heitkamp said in a statement afterward. "Like my colleagues, I’ll wait to see who he nominates for the position – and then get to work exhaustively reviewing and vetting the nominee."
"Health care is the big thing right now," Manchin told a local radio show on Friday. "You give me someone who says, 'I want to repeal health care' and throw out 800,000 West Virginians and … people who have gotten [coverage] for the first time when we can fix it and repair it, that's a big problem." Manchin also expressed concerns about overturning abortion rights. "Roe v. Wade has been law for 40-some years," he said.
In a speech on the Senate floor last week, Minority Leader Chuck Schumer emphasized the stakes. Unlike Gorsuch, who took the place of a conservative, this nominee would be filling a swing seat position. "This is the most important Supreme Court vacancy for this country in at least a generation," he said. "Nothing less than the fate of our health care system, reproductive rights for women, and countless other protections for middle-class Americans are at stake."
Republican groups are already ramping up the pressure on vulnerable Democrats. A Supreme Court vacancy that would shift the ideological bent of the bench "hits the reset button on the 2018 elections and also shifts the spotlight back onto the Senate," says Chris Pack, spokesman for the Senate Leadership Fund, a super PAC aligned with McConnell.
The Judicial Crisis Network, which spent millions in an effort to block Obama nominee Merrick Garland and to boost Gorsuch, announced a seven-figure cable and digital advertising buy targeting red state Democrats.
Trump told reporters he would announce his nominee on July 9, and said he has narrowed the candidate list down to five, including two women. GOP leaders have said they would like to move quickly on a nominee and have that person confirmed by the start of the new court session in October.
Asked in an interview with Fox News whether he would consider a candidate's position on Roe v. Wade before nominating him or her, Trump said, “Well, that’s a big one. And probably not."
"I’m putting conservative people on and I’m very proud of Neil Gorsuch; he has been outstanding. His opinions are so well written and so brilliant. I’m going to try and do something like that, but I don’t think I’m going to be so specific," he continued.
Meanwhile, some Democrats are still arguing for delays. "If the Senate needed to wait nine months when Justice Scalia died, then it surely needs to wait four months now," California Sen. Dianne Feinstein tweeted. "If the American people deserved to have their voices heard then, they deserve to have their voices heard now."
McConnell and Republicans have insisted there are key differences between now and then. "These aren’t the final months of a second-term, constitutionally lame-duck presidency with a presidential election fast approaching," McConnell said on the Senate floor. "We're right in the middle of this president’s very first term."
New Jersey Democratic Sen. Cory Booker went a few steps further – but to make an opposing point. "Trump is the subject of a criminal investigation that could eventually come before the Supreme Court — he has a clear conflict of interest," he said. "The investigation must conclude before considering any nominations."