Senate Minority Leader Charles E. Schumer (D-N.Y.) summed up the strategy the day after President Trump announced he had tapped the judge from the U.S. Court of Appeals for the District of Columbia Circuit as his nominee to replace retired Justice Anthony M. Kennedy, who for three decades had been the swing vote on the high court.
“Our focus is on the substance here. We think that the nominee would be so devastating in what he would put into place and turn the clock back decades,” Schumer said July 10.
Democrats have strayed from that focus at times, particularly in the past couple of weeks as the fight inside the Capitol has centered on what documents will be given to the Senate from Kavanaugh’s days as a lawyer and staff secretary in the George W. Bush White House.
The dispute is legitimate and has a familiar refrain from when Republicans were in the minority and clamored for more documents during the 2010 confirmation of Justice Elena Kagan, who had served in the Clinton and Obama administrations.
The more senators can see the private writings of potential justices, the more they can assess how they will rule if on the court.
So angry Democrats, led by Schumer, held a news conference Thursday to threaten a lawsuit if the National Archives fails to fulfill their Freedom-of-Information request for hundreds of thousands of pages of documents.
What unfolded was something sounding very process driven. In their opening remarks Schumer and Sens. Richard Blumenthal (D-Conn.) and Sheldon Whitehouse (D-R.I.) uttered the term “documents” 20 times. During the question-and-answer session that followed, the senators touted “documents” an additional dozen times.
All the while they never once mentioned abortion rights and only spoke about health-care when a reporter asked why Democrats were not talking about what they had previously said was such a critical issue.
“We have focused on health care,” Schumer responded, citing events around the nation designed to get activists engaged in the court battle.
Earlier that day Sen. Dianne Feinstein (D-Calif.) delivered the sort of remarks that Democrats want others to notice, saying that “withholding even a small number of documents” might hide Kavanaugh’s views on health care, same-sex marriage, abortion, climate change and other key issues.
“If confirmed, Brett Kavanaugh would be the deciding vote on cases involving individuals’ rights to privacy, liberty, and autonomy in the most personal aspects of their lives,” said Feinstein, the ranking Democrat on the Judiciary Committee.
That’s the sort of argument that is more likely to resonate with both liberal activists and swing voters in key battleground states.
Democrats learned the hard way that staying focused on issues is critical, after they failed to pressure Republicans into holding confirmation hearings and votes on President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court in 2016.
Majority Leader Mitch McConnell (R-Ky.) had decreed the Garland nomination would not get considered, not even a hearing, because it was the final year of Obama’s presidency and the voters would decide who picked the justice to replace the late Antonin Scalia.
The Democrats crafted a campaign theme — “Do your job” — that did little to energize liberal activists and did not apply political pressure on Senate Republicans, including a half-dozen who were running for reelection in states that Obama had previously won.
It fell flat because the theme focused on the process of being a senator and how unprecedented it was for McConnell to block a Supreme Court nomination in that manner.
The Democrats and a coalition of liberal groups supporting Garland failed to connect that nomination — which would have tipped the ideological balance of the court toward Democratic appointees — to key issues their voters cared about like civil rights, the environment, worker rights or abortion.
By the fall of 2016 Democratic candidates for the Senate did not mention Garland in their speeches or advertisements, while Republicans often talked up the court opening as a reason for conservatives to vote. Trump and Senate Republicans won.
With that defeat in mind, the coalition opposing Kavanaugh has organized events across the country centering on issues, not parliamentary process. “Rise up for Roe” events have been headlined by Sens. Elizabeth Warren (D-Mass.) and Kirsten Gillibrand (D-N.Y.), potential Trump challengers in 2020.
Next week, abortion rights events, organized by Demand Justice, Planned Parenthood and NARAL, will be held in Phoenix and Las Vegas, in two states where Republicans are defending Senate seats this fall.
Success, in this regard, can be measured several ways. If Democrats defeat Kavanaugh, that would be the biggest victory. But even if he is confirmed, Democrats can at least try to galvanize voters ahead of the fall elections in some key states and lay the groundwork for elevating the courts as an issue for the 2020 presidential campaign.
In 2016, they failed at both those tasks. That’s because their message back then sounded a lot like the crosstalk of Schumer and Blumenthal on Thursday when they pressed for more Kavanaugh-related documents.
Afterward, Blumenthal acknowledged that the documents were important but the real focus needed to be on making the nomination’s stakes understandable in a very real way.
“This nomination could well determine whether women decide when they have children, whether people can marry the person they love, whether people drink clean water and breathe clean air,” he said.