Hours before President Trump revealed his Supreme Court nominee Monday night, the White House made a curious announcement.
Why would the White House put the nomination battle in the hands of a man who famously mocked the Affordable Care Act’s requirement that health insurance cover maternal health by saying “I don’t need maternity care” — and who as recently as last year was a lobbyist for those fighting to keep drug prices high?
Now it makes sense. In tapping Brett Kavanaugh to be his second nominee to the Supreme Court, Trump has guaranteed that health care will be at the center of the confirmation fight.
Senate Democrats don’t have the power to delay a vote on the nomination, nor, likely, the votes to defeat it. But they can use the confirmation to return attention to the health-care fight before the midterm elections. And Trump, with this nomination and other recent actions, made that much easier.
The Trump administration last month took dead aim at what’s left of the Affordable Care Act after last year’s botched attempt to repeal the law. The Trump administration joined a lawsuit by 20 states that would, if successful, end the requirement that health insurers cover those with preexisting conditions. The case is due to be heard in district court in Texas and could wind up before the Supreme Court — and Kavanaugh — soon.
Kavanaugh is a polarizing figure in the health-care debate. Among the things that distinguish him from the other finalists on Trump’s list is his expansive view of executive power — he argued that a president could decline to enforce a statute such as Obamacare even if a court upholds its constitutionality — and his dissent in a 2011 case in which others on his appellate court upheld the constitutionality of the Affordable Care Act.
Republicans are likely to bring Obamacare into the confirmation hearings, too. Some conservative groups opposed Kavanaugh because they think his dissent in the Obamacare case didn’t go far enough in declaring it unconstitutional.
In the long run, Kavanaugh could shape jurisprudence for decades on abortion, gay rights, voting rights, money in politics, guns, presidential authority and more. But his most immediate impact could be on health care.
There will, of course, be much else to squabble over in this confirmation battle. Trump’s critics will say, with some evidence, that with Kavanaugh the fix is in. Trump is in some legal jeopardy with probe by Robert S. Mueller III, and in tapping Kavanaugh, Trump is essentially choosing his own judge and jury — a nominee who argued that presidents should not be distracted by civil lawsuits, criminal investigations, or even questions from a prosecutor or defense attorney.
There will, naturally, also be concerns that Kavanaugh would join a conservative majority in overturning Roe v. Wade. Critics will point to his dissent in a case in which the majority said that a teen immigrant could have an abortion. Kavanaugh wrote that the majority undertook “a radical extension of the Supreme Court’s abortion jurisprudence.” (Some right-wing critics, again, say Kavanaugh didn’t go far enough in rejecting abortion.)
But voters have shown little interest in the Russia probe. And, though highly supportive of Roe, they are skeptical that it will be repealed. Except for the strong partisans on both sides, voters don’t get excited about the Supreme Court in general.
They do, though, get excited about health care. They trust Democrats on the matter far more than Republicans. And the threat to health care, unlike abortion, is evident.
The Trump administration and congressional Republicans very publicly attempted to repeal the Affordable Care Act last year, and they succeeded in repealing the individual mandate. Trump cut off payments to insurers that stabilized the Obamacare markets, and he took various other steps to sabotage the exchanges and reduce participation. As a result, health-care premiums are set to soar this fall.
And now Trump has formally issued a legal brief asking that courts rule as “invalid” the Obamacare provisions requiring insurers to cover preexisting conditions and not to raise premiums based on illness or gender.
In a Kaiser Family Foundation poll last month, 76 percent of respondents said that it’s very important for the protections for preexisting conditions to remain, while an additional 15 percent say it’s somewhat important. But Trump’s legal brief and his nomination of Kavanaugh put those extraordinarily popular health-care provisions in the bull’s eye.
Democratic strategist Jesse Ferguson said Democrats had wanted a way to talk about health care for the 2018 midterms, and now they have it. “Republicans hoped their bad dreams about defending health-care repeal had stopped,” he said.
Now, the nightmare is real.