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Opinion Inside the coming campaign to block Trump’s Supreme Court pick

When it comes to replacing Justice Anthony M. Kennedy, columnist Ruth Marcus has some unsolicited advice for President Donald Trump and Republicans. (Video: Adriana Usero, Gillian Brockell/The Washington Post)


The ultra-savvy media take on Anthony Kennedy’s retirement is that Democrats will be “powerless” to stop President Trump’s replacement for him on the Supreme Court. That’s largely true, but it’s an easy thing to say: Of course Democrats don’t have the votes to block Trump’s nominee, if all 51 Republican senators vote to confirm him or her, or if 50 do (and Vice President Pence breaks the tie).

But Democrats and their outside allies can have an impact. They can do everything in their power to frame the stakes for the country in the coming battle over Trump’s pick, educating and mobilizing large swaths of the voting public in advance of the elections, making this deeply uncomfortable for the handful of GOP senators who could conceivably be persuaded to vote no (even if that’s a huge long shot), and for Republican incumbents who are vulnerable this fall.

This morning, I spoke to Brian Fallon, who is executive director of Demand Justice, a liberal group that will play a leading role in the campaign to block Trump’s nominee. He stressed that the campaign has three core components:

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Vividly emphasize what will happen to abortion rights. Fallon told me that his group will be raising and spending millions of dollars on ads and media, in part to make this point. One key argument will be that, once Trump’s pick is on the high court, multiple red states will have an incentive to pass new laws in effect outlawing abortion, for the explicit purpose of seeing a legal challenge to one get through to the Supreme Court, where it might be upheld, gutting Roe. Trump is widely expected to pick someone from his current shortlist of 25 possibilities, and liberal groups believe that all of them represent a threat to Roe.

“I don’t think our side realizes how real the threat is of Roe being overturned,” Fallon told me. “Republican legislatures have already been passing increasingly restrictive measures when it comes to reproductive rights.”

Fallon noted that the “organized right-wing infrastructure” that pushes such measures on the state level would turn toward the goal of “throwing stuff at the wall to see what can survive a legal challenge,” and they’ll get “increasingly aggressive and bold with anti-abortion laws at the state level” once there’s a “new five-to-four conservative majority that is inhospitable to Roe.” As Molly Redden points out, we can already look at multiple such measures on the state level and the real impact they are having in restricting abortion access, as a preview of more aggressive measures to come along these lines.

Emphasize the destruction that the new court could do to the Affordable Care Act. Fallon pointed out that the Trump administration has now gotten behind a new and bogus legal challenge to the ACA that targets the protections for preexisting conditions as unconstitutional.

While it seems unlikely that this challenge will get very far in the courts, Fallon noted that the addition of another hyper-conservative justice in the Antonin Scalia mold makes it more likely that if it does make it up to the high court, it would get upheld.

Fallon noted that the “Justice Department position is now that they won’t defend the law in court,” which, with a new court, will incentivize the “cottage industry on the right” to hatch new legal challenges in hopes that one will get through. A new court could also make it harder to fight against Trump’s executive efforts to undermine the law.

“A rock-solid conservative majority will make it harder to mount legal challenges to some of the Trump administration’s most legally dubious sabotage efforts,” Nicholas Bagley, a health law and policy expert at the University of Michigan, told me. Bagley noted that the Trump administration has greenlighted efforts by red states to impose work requirements on Medicaid recipients, and added: “Good luck getting a new court to strike down those waivers.”

The campaign against Trump’s nominee will emphasize that his or her ascension could put popular provisions such as the protections for preexisting conditions and the Medicaid expansion in greater peril.

Pressure Senate Democrats to hold the line.  Liberal groups will intensify the pressure on Senate Democrats to declare at the outset that any nominee from Trump’s shortlist is a nonstarter, period, full stop.

“There’s no reason why every Democrat can’t say that right now,” Fallon said, characterizing the message that groups will deliver to Senate Democrats. “The idea that anyone would reserve judgment cedes the timing and framing to Trump. We’re going to be putting a lot of pressure on Democrats to close ranks quickly behind the idea that anyone on that list is disqualifying.”

This might generate a lot of tut-tutting from certain Beltway observers. But as another Democratic operative, Adam Jentleson, pointed out, Mitch McConnell essentially shredded all the old rules in these nomination battles when he refused a hearing to Merrick Garland, and if Democrats don’t play by the “new rules,” they’re “playing a fool’s game.”

Two GOP senators — which is all Democrats need if they stay united — have both been willing to buck the GOP on the two above issues, abortion and health care. They are Susan Collins and Lisa Murkowski. As Rick Hasen points out, as unlikely as it might seem that they would do so on Trump’s nominee, their histories show that it’s not impossible if the outpouring of public opposition (which both have shown sensitivity to) is strong. And the chances of that are marginally improved if Democrats strike a united pose right away, intensifying the spotlight on them.

* WHY DEMOCRATS MIGHT OPPOSE TRUMP NOMINEE: Republicans are predicting that Senate Democrats in Trump states will have to support his nominee for the Supreme Court. But Democratic strategist Paul Begala makes a good point:

“I don’t think any Democrat is going to go along with a Trump appointee to the Supreme Court. Not if he or she wants to raise any money or have any volunteers.”

This is the essence of the matter. Any Democrats who support Trump’s nominee will likely have hell to pay with the base.

* REPUBLICANS TO GRILL ROSENSTEIN: CNN reports that House Republicans will today grill Deputy Attorney General Rod J. Rosenstein and continue demanding documents on the genesis of the FBI probe that Rosenstein has refused to turn over:

The House is expected to pass a resolution on Friday demanding that the Justice Department fully comply with subpoenas from the Judiciary and Intelligence committees by July 6. Conservatives have suggested that the resolution is the last step before more drastic measures, like holding Rosenstein in contempt or even impeaching him.

This is a GOP effort to derail legitimate law enforcement activity to shield Trump from accountability, under the guise of fake oversight. Nothing Rosenstein gives Republicans will ever be enough.

* A DEEP DIVIDE IN 2020 DEMOCRATIC PRIMARIES: With recent primaries showing that nonwhites and females are rising in the Democratic Party, The Post makes this smart point about the 2020 Democratic presidential primaries:

The tribal trend has implications for the 2020 Democratic presidential primary, where a historic number of nonwhite and female candidates are considering launching campaigns, including Sens. Kamala D. Harris (Calif.) and Cory Booker (N.J.). They will likely face off against a cadre of more traditional white male candidates, including possible bids by former vice president Joe Biden and former Virginia governor Terry McAuliffe.

If you think the 2016 Democratic primaries got brutal and nasty …

* TRUMP LIES ABOUT FACTORY: Trump says the head of U.S. Steel privately told him it will open “six” new facilities due to his policies. But Glenn Kessler reports that two blast furnaces will be launched at an existing facility. Kessler asked U.S. Steel to confirm the conversation. But:

Meghan M. Cox, U.S. Steel’s spokeswoman, simply offered this response: “To answer your question, we post all of our major operational announcements to our website and report them on earnings calls. Our most recent one pertained to our Granite City ‘A’ blast furnace restart.” Translation: The president is wrong. But apparently U.S. Steel is afraid to say that out loud.

And this is how big companies help Trump lie to America, apparently because they are afraid to tell the truth about his lies.

* SUPREME COURT IS AN ‘AGENT’ OF GOP: E.J. Dionne Jr. has a good column connecting the recent awful Supreme Court decisions (upholding the Muslim ban, gutting public-sector unions, punting on gerrymandering) to the GOP theft of a seat in 2016:

The Republican Five on the nation’s highest court have operated as agents of their party’s interests. And now things stand to get even worse … What’s wrong with all these 5-to-4 partisan decisions? Well, there is the matter of the Republican majority … not even permitting a vote on … Merrick Garland … Every 5-to-4 conservative decision is (in the parlance of judges) the fruit of a poisonous tree of unbridled partisanship.

As Dionne predicts, the result will be leaving “an abusive president unchecked and use raw judicial power to roll back a century’s worth of social progress.”

* TRUMP ADVISERS BRACE FOR HIS ‘MOOD’ AT NATO: The New York Times reports that European leaders are worried that, at the upcoming NATO meeting, Trump will repeat his angry, childish meltdown at the Group of Seven summit. This is reassuring:

Even senior American officials said they had no clarity on Mr. Trump’s intentions for this meeting. They have told senior European officials that a lot will depend on Mr. Trump’s mood as he arrives and what is being highlighted on his favorite American news media outlets such as Fox News. And no one expects him to sit quietly through nearly two days of normally mind-numbing speeches by at least 28 other leaders.

And, of course, Europeans fear this will be followed up by a display of great warmth and friendship at the meeting with Vladimir Putin that will follow.

* AND TRUMP DEFENDS PUTIN ONCE AGAIN: Good morning, Mr. President. Thinking about the Russia investigation, are we?

It’s worth noting that this is basically an open invitation to Russia to sabotage our next election, as well.