Last year’s Republican effort to repeal Obamacare might seem quite similar to this summer’s battle over the nomination of Judge Brett M. Kavanaugh to the Supreme Court. But don’t be fooled.
In July 2017, Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) joined Sen. John McCain (R-Ariz.) to defy GOP leaders and defeat legislation to scrap the Affordable Care Act. Now, with McCain home battling brain cancer, the two moderate Republicans are in the crosshairs of well-organized campaigns that are expected to pour millions of dollars in advertising into the small-market towns throughout Maine and Alaska.
Liberal activists are trying to re-create last year’s playbook and pressure Collins and Murkowski into opposing Kavanaugh, highlighting the judge’s rulings on the ACA and abortion as potential red flags. Almost every other Republican has praised the conservative jurist, so liberals are targeting the two moderates in the hope that if they opposed Kavanaugh, that would be enough to defeat his nomination, assuming all 49 members of the Democratic caucus held together.
But that’s where the similarities end. In separate interviews, Collins and Murkowski said constituents view the health-care debate and the Supreme Court very differently.
“The protests are similar, the media campaign is more aggressive this time, but the constituent involvement is less. And I think that’s because health care is so personal and affects everybody,” Collins said.
“A different level of intensity, a different level of intensity. What I was hearing at home were very personal stories,” Murkowski recalled of last summer’s interactions with constituents. “Literally people in tears. The level of just emotional outpouring that made it just — intense is the best word — is different than it is now.”
Both Republicans remain adamant that they have not made a decision on how they will vote on Kavanaugh, but the reduced constituent engagement makes the Supreme Court fight more difficult for liberals than last year’s defense of the ACA.
Collins said the media campaign actually feels “far heavier” this summer than last year. On Friday, she faced a few protesters outside a lobster bake in Portland. They complained about President Trump’s campaign promise to appoint judges who would overturn Roe v. Wade and warned about potential rulings against the ACA.
Demand Justice, the group leading the liberal coalition’s multimillion-dollar opposition to Kavanaugh, posted a video of the interaction and encouraged Mainers to call the senator’s office to demand she oppose the nominee.
So far, however, Collins said, the number of contacts from constituents — phone calls, emails, letters — does not approach the level of the health-care debate.
Some Senate aides said the confirmation battle for Education Secretary Betsy DeVos sparked more constituent outreach than either Kavanaugh’s nomination or last year’s confirmation of Justice Neil M. Gorsuch.
Murkowski said that should be expected because Supreme Court confirmations turn on somewhat esoteric arguments about hypothetical legal questions. People are “worried about what might happen if” an issue makes its way to the justices, Murkowski said, rather than the direct emotional appeals of last summer.
“What I was hearing with health care was, again, very direct, very personal,” she recalled.
While home one weekend during the ACA debate, Murkowski went to help her son at his farmers market stand in Anchorage, and it turned into an impromptu town hall. “Usually, I just help him sell pasta, but last summer, there were more people who were lined up to talk to me,” she said.
Those stories felt real and organic to the two senators, not part of a protest backed by a group from Washington issuing talking points for supporters to shout at the senators.
Sometimes, it was a mother talking about how the ACA’s requirement of insurers to cover people with preexisting conditions meant that her son could get affordable care. Other times, a wife explained that the law’s Medicaid expansion meant her husband’s heart disease would be properly treated.
These were life-or-death moments. Did they impact how the senators voted?
“How could they not?” Murkowski asked.
The Supreme Court battle has not reached top-tier status in Maine, based on crowd reactions during the past two Fourth of July parades in which Collins marched.
At the 2017 parade in Eastport, the state’s largest, every single constituent talked about one issue: How would Collins vote on the ACA repeal later that month?
This year’s parade, in her hometown of Bangor, the crowd asked about the issue of child separations of undocumented immigrants crossing the border and “a whole host of issues,” she said.
“I think only two people mentioned the court,” she said.
The decision for Collins, then, is not likely to turn on political pressure. She is convening meetings every other day with her top staff, as well as three former aides who are lawyers, to pore over Kavanaugh’s rulings and writings.
Collins left a meeting Thursday with a binder that included several folders of Kavanaugh material. The transcript from a September 2017 speech, delivered by Kavanaugh at the American Enterprise Institute, was blanketed with different color pen marks and highlights, handwritten notations running along the column.
Her staff has taught her the difference between “horizontal stare decisis and vertical” — horizontal is the practice of a court adhering to its own precedents, while vertical refers to lower courts abiding by legal precedents from higher courts.
“A phrase I was not familiar with,” Collins said.
Murkowski has been busy managing debate on an annual spending bill, so she expects to begin digging into the issue when she returns to Alaska early next month during a brief Senate recess.
“I will have had time to be back in the state, just kind of connecting with people, listening to what they’re saying on the ground,” she said.
Like Collins, she expects to schedule her meeting with Kavanaugh in mid-August. Unlike last summer, her vote may hinge on that one conversation rather than hearing the personal stories of many Alaskans.
“Look him square in the eyeball and talk to him,” Murkowski said.