In Senate Minority Leader Chuck Schumer’s final speech on the chamber floor before the vote confirming Supreme Court Justice Brett Kavanaugh, he exhorted Americans angry over the fierce partisan confirmation warfare to vote in the midterm elections.
“Our country needs to have a reckoning on these issues, and there is only one remedy. Change must come from where change in America always begins: the ballot box,” Schumer said. “So to Americans, to so many millions who are outraged by what happened here, there’s one answer: vote.”
He and other Democrats awoke the day after Election Day 2018 to this USA Today headline: “Democratic senators lost in battleground states after voting against Kavanaugh.”
Senate Democrats’ campaign against the nominee over unproven, 36-year-old sexual assault allegations backfired when it animated Republican voters more than their own liberal base in key swing states. Even though Democrats retook the House majority, exit polling showed that the ugly confirmation process, which captured the nation’s attention in the weeks preceding the midterms, played a role in the defeat of four Democratic senators: Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Claire McCaskill of Missouri and Bill Nelson of Florida all lost their seats.
Turnout is lower in midterm elections than in presidential contests, so it remains to be seen which side’s base will be more energized by what could be an even nastier partisan battle over the Supreme Court this time around – perhaps culminating just days before voters will decide whether to deny President Trump a second term.
But so far, Republicans are citing the Democrats’ treatment of Kavanaugh both as a reason to flip their position on whether presidents should be able to seat high court picks in an election year and as a preview of how voters will react to Democratic attempts to stop it.
Schumer, standing next to Rep. Alexandria Ocasio-Cortez, over the weekend vowed to use “every tool” at his disposal to blow up the confirmation process if Republicans move forward with plans to fill the seat left open by Justice Ruth Bader Ginsberg’s death on Friday.
While Schumer didn’t disclose what those tools are, other Democrats were quick to echo previous threats to pack the high court (the process of adding more justices beyond the nine existing positions), eliminate filibuster rules for legislation, and to make Puerto Rico and the District of Columbia states, thus adding up to four more Democrats in the Senate. Speaker Nancy Pelosi also didn’t rule out launching impeachment proceedings against Trump or Attorney General William Barr if Republicans move forward with trying to fill the high court vacancy.
To accomplish most of that plan, Democrats would have to win back not just the Senate majority on Nov. 3 but the White House to preclude a presidential veto, and Republicans say they like their election odds better now with the court battle in front of them.
‘It Reminds Voters of What’s at Stake’
One possible beneficiary is Arizona Sen. Martha McSally, who polls have consistently shown is lagging behind her Democratic challenger, Mark Kelly, a former NASA astronaut and the husband of former Rep. Gabby Giffords. Giffords left Congress after being shot and nearly killed in 2011.
McSally narrowly lost her race against Kyrsten Sinema in 2018 but was appointed to the Senate seat left open with Sen. John McCain’s passing 2018. Because the McSally-Kelly race is considered a special election, whoever wins will be seated Nov. 30, potentially changing the Republicans’ confirmation math in a lame-duck session should Kelly claim victory. In a tweet Sunday, the challenger said he believes filling the high court vacancy should be postponed until after the election and possibly until Inauguration Day if Joe Biden wins.
“Arizonans will begin casting their ballots in a few weeks, and I believe the people elected to the presidency and Senate in November should fill this Supreme Court vacancy,” he tweeted, arguing that the decision is especially important “with an upcoming case about health care and protections for pre-existing conditions.”
Since the pitched battle over the vacancy began over the weekend, McSally’s campaign has seen an increase in donations, as well as media attention, which a spokeswoman believes cuts the incumbent’s way. “The enthusiasm that’s been generated by the campaign and the president’s campaign in Arizona has already been ratcheted up and magnified by the introduction of the single biggest motivating issue for Republican voters,” Caroline Anderegg told RealClearPolitics. “ ... It reminds our voters what’s at stake and crystallizes for so many people what’s at stake in protecting the Senate majority.”
A McSally fundraising email over the weekend referenced the Democratic fight over Kavanaugh and fellow Trump appointee Neil Gorsuch as reason for supporters to contribute to her campaign so the senator could help the GOP combat “the smears.”
“No matter who President Trump nominates, the [Democrats’] liberal base will take this opportunity to drag us through the mud — just like they [did] to Justices Gorsuch and Kavanaugh,” the fundraising pitch states.
Republican operatives also told RCP they are planning to use the words of Ocasio-Cortez over the weekend in upcoming television and digital ads. The freshman New York congresswoman urged Democratic voters to let the upcoming battle over the high court nomination “radicalize you” into action.
Liberal activists gathered outside the Washington, D.C., home of GOP Sen. Lindsey Graham, chairman of the Judiciary Committee, early Monday to protest filling the vacancy either before or in the weeks immediately following the election.
“We’re here with your wake-up call,” the protesters yelled outside the senator’s townhome. Democrats and other liberal groups have urged Graham to abide by statements he made in 2016 against the prospect of confirming Merrick Garland because the Obama pick took place in an election year.
Later Monday, Graham, who is in the final leg of a closer-than-expected reelection campaign, said he’s not going to be deterred from advancing a nominee, underscoring his position by citing the Democrats’ treatment of Kavanaugh.
“After the treatment of Justice Kavanaugh, I now have a different view of the judicial confirmation process,” he said in a statement. “... Compare the treatment of Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh to that of Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and it’s clear that there already is one set of rules for a Republican president and one set of rules for a Democrat president.”
At least one Republican in a tough election contest, Sen. Susan Collins of Maine, who played a pivotal role in backing Kavanaugh late in his confirmation process, over the weekend quickly announced that she is opposed to her party’s push to seat a Trump nominee in the coming weeks, citing Garland as a precedent. Other vulnerable Republican senators, such as Cory Gardner of Colorado, Thom Tillis of North Carolina and Steve Daines of Montana, signaled their support for Senate Majority Leader Mitch McConnell’s decision to move forward and fill the vacancy rather than wait for the election results. Tillis, along with Sen. Joni Ernst of Iowa, will play high-profile roles in the confirmation as members of the Judiciary Committee. Ernst, who is in a tougher-than-expected reelection fight, indicated over the summer that she would support moving forward with hearings if they come before the election or during a lame-duck session afterward.
Conservative judicial strategists argue that an intense televised Supreme Court fight will only help Ernst and Tillis as it shifts the narrative from voter dissatisfaction with Trump’s handling of the coronavirus to the makeup of the Supreme Court, which will impact public policy for decades to come.
“The Supreme Court fights are critically important to the Republican base,” Mike Davis, a former Republican Senate and White House aide who played a key role in the confirmations of Kavanaugh and Gorsuch, told RCP. “We have the opportunity of a lifetime to transform the court. I believe this will motivate Republicans more than Democrats, especially if Democrats move to impeach. There would be nothing better than AOC becoming the face of the Democrats’ Supreme Court fight.”
Senate Judiciary Dems Respond
Meanwhile, top Democrats on the Senate Judiciary Committee cast Graham and McConnell as hypocrites for arguing in 2016 for the need to wait until after that year’s presidential election to consider Garland’s nomination because the American people should have a voice in the selection.
Sen. Chris Coons, a Delaware Democrat who sits on the panel, over the weekend said he was furiously calling Republican colleagues and pressing them not to destroy what’s left of the Senate’s bipartisan decorum by moving forward with the nomination process.
Sen. Dianne Feinstein, the top Democrat on the committee, chided Republicans for breaking with their own 2016 statements. By the end of Monday, however, the party’s left wing criticized her for arguing against ending the filibuster on all legislation if Republicans move the nomination in the next few weeks and Democrats then win back the Senate majority in the election.
“I don’t believe in doing that. I think the filibuster serves a purpose,” Feinstein told a Bloomberg reporter. “It is not often used. It’s often less used now than when I first came, and I think it’s part of the Senate that differentiates itself.”
MSNBC host Chris Hayes was one of several liberal Democrats to call out Feinstein for what they viewed as an early capitulation in the Supreme Court fight. Mark Moulitsas, founder of the liberal Daily Kos, was harsher. “Wrong on the merits, wrong on the facts. Feinstein is the worst. California deserves better,” he tweeted.
Some of the same Democrats are criticizing Biden for carving out a less confrontational path than Schumer and Ocasio-Cortez. The nominee has implored Republican senators to let cooler heads prevail and wait until after the election on the court vacancy.
Biden, though, carefully avoided Ginsburg’s death and the looming Senate showdown during his speech Monday in Manitowoc, Wis. Instead, he chose to continue hitting Trump for his handling of the coronavirus pandemic while making an appeal to working-class voters. Pointing to the nation’s 200,000 COVID-related deaths, Biden excoriated Trump for holding large rallies with packed crowds. He also laid into Trump for recent revelations in Bob Woodward’s book that the president downplayed the virus’ severity early on so people wouldn’t panic.
“Trump panicked,” Biden said. “The virus was too big for him.”
The top spokeswoman for the Democratic Senatorial Campaign Committee also isn’t going for the jugular when it comes to the high court vacancy. Instead, she has continued to press vulnerable Republicans over Trump’s handling of the coronavirus, as well as cite GOP attacks on Obamacare, rather than launch a new round of salvos on the Supreme Court battle ahead.
Lauren Passalacqua spent the weekend highlighting news that political handicapper Larry Sabato had moved Collins’ race from a likely “tossup” to “lean Democratic,” and Graham’s race from “likely Republican” to “lean Republican,” based on new polling. She also trained her comments regarding the Supreme Court on the impact a lopsided conservative high court majority could have in dismantling the Affordable Care Act.
“Tens of millions of Americans would lose coverage through Medicaid and subsidized marketplaces and many more would lose the law’s consumer protections, including a ban on discriminating against those with preexisting medical conditions,” she tweeted, quoting a Washington Post story about Obamacare’s chances of surviving a “Supreme Court diminished by RBG’s death.”
Biden and Senate Democratic campaign operatives aren’t mimicking Schumer and Ocasio-Cortez’s call to arms over the court vacancy because they got burned last time around, said Jesse Hunt, a spokesman for the National Republican Senatorial Committee.
Senate Republicans argue that a nasty, Kavanaugh-like redux would benefit them far more than Democrats by alienating independents. They also don’t believe Democrats would attack a woman nominee in such personal terms as those used against Kavanaugh and argued they would be likelier to try to blow up the nomination process in other ways.
“This puts Democrat candidates in the uncomfortable position of having to disclose to voters they are controlled entirely by Chuck Schumer and the insurgent wing of liberal extremists that have hijacked the Democratic Party,” Hunt said. “What had been a poorly kept secret will now be thrust into open view, hurting Democrats’ chances to appeal to independent voters in key Senate races.”