Democrats Focus Court Messaging on Health Care
Democrats know the odds of preventing President Trump's Supreme Court justice nominee, Brett Kavanaugh, from confirmation are extremely long. So they are focusing their opposition efforts on an issue that’s successfully placed them in an underdog role before: the future of the Affordable Care Act.
Senate leaders see the successful effort to protect Obamacare from repeal last year as a roadmap for Kavanaugh's confirmation fight: an intense buildup of public pressure that ultimately kept the entire party caucus together and persuaded three Republicans to come around to their cause.
"We Democrats believe the number one issue in America is health care and the ability for people to get good health care at prices they can afford. The nomination of Mr. Kavanaugh will put a dagger through the heart of that cherished belief that most Americans have," Senate Minority Leader Chuck Schumer told reporters on Tuesday. "There are many issues out there ... but at the top of the list is health care, health care."
Schumer acknowledged that his party has few procedural tools at its disposal to stall or block confirmation, and dismissed the idea of boycotting the Judiciary Committee hearings to prove a point. "There is no way we can prevent the Senate from meeting," Schumer said. "And as for the committee, we believe we should be there and ask very tough questions of the nominee. ... The substance is the way to win this."
It's a long-shot plan, to be sure. And it's unclear whether a messaging strategy rather than a procedural one will completely satisfy the base. But Democrats also see the focus on health care as a better way than abortion rights for their vulnerable senators up for re-election in Trump states to defend any opposition to the judicial pick.
"Health care is the safest terrain for [Joe] Manchin, [Joe] Donnelly, [Claire] McCaskill and [Heidi] Heitkamp to challenge Trump’s nominee in their respective home states," said Democratic strategist and former Senate aide Joel Payne, referring to red state Democrats facing tough re-elections. "If the discussion around the Kavanaugh nomination is only focused on talking about women’s reproductive rights, Republicans will be able to more easily box in vulnerable Democrats."
Additionally, Payne said, "focusing on health care as part of the Supreme Court confirmation process also very easily transitions into an Election Day issue for Democrats to seize on this November in the midterms."
In that way, the strategy potentially functions as a morale booster. "When everyone thought we were going to lose the Affordable Care Act, and it was going to be repealed, we made the case to the American people. And we got not one, not two, but three Republicans to vote with us," noted Minnesota Sen. Amy Klobuchar.
"That result was from a galvanizing of the American people," said Connecticut Sen. Richard Blumenthal. "If they understand what's at stake, it will be a reprise of the health care dynamic."
This approach has given some vulnerable Democrats a bit of running room. "The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their health care," Manchin said Monday in response to Kavanaugh's appointment.
But he and other red state Democrats are holding their ultimate intentions close to the vest. And even if the entire caucus together cannot stay together—which is a distinct possibility—it's not clear whether Republican lawmakers will feel the same pressure they did last year.
"I've noticed they seemed to have switched from a focus on Roe to health care in an attempt, I assume, to unify their caucus," Maine Republican Sen. Susan Collins said, referring to the 1973 landmark decision on abortion rights.
"It will be very difficult for anyone to argue he is not qualified for the job," she said of Kavanaugh. "Other issues involving his temperament and judicial philosophy will also factor into my decision."
Collins, who voted against repealing Obamacare, said health care issues are important to her decision-making process. She noted that she had written to the Justice Department in protest of its decision not to defend the health care law against court challenges.
But she also signaled an openness to Kavanaugh's position on the issue, noting that he "has already rendered one decision on the Affordable Care Act that frankly was criticized by conservatives for not going far enough." Collins was referring to Kavanaugh's dissent, as an appellate judge on the D.C. circuit, to a ruling upholding Obamacare that some critics argued helped pave the way to saving Obamacare.
While it's still early, that response could be part of Collins' ultimate defense in supporting Kavanaugh and provide a way to answer to critics on the issue of health care. Both Collins and Alaska Republican Sen. Lisa Murkowski, considered the other GOP swing vote on the nomination, voted to confirm Kavanaugh to his current post in 2006.
And Republican leaders, meanwhile, seemed confident that the nominee, compared to others Trump considered, has a better chance of unifying the party in support.
"He's being really well-received out there, and what we know about him so far, are [that] things I think have the potential to unite Republicans behind him," said the GOP conference’s chairman, Sen. John Thune said. "The initial responses have been very favorable, and obviously we're going to want to have all Republicans on board because we're going to need all Republicans on board."
For his part, Senate Majority Leader Mitch McConnell dismissed the Democrats' health care strategy simply as politics. "I fully anticipate that we’ll hear all kinds of fantastical stories about the pain and suffering that this perfectly qualified, widely respected judge will somehow unleash on America if we confirm him to the court," McConnell said on the Senate floor. "That kind of cheap political fear-mongering insults the intelligence of the American people. ... And so I look forward to the Senate’s fair consideration of this most impressive nomination."