Senate Majority Leader Mitch McConnell (R-Ky.) told reporters he expected to “handle this nomination fully by the fall” after most Republican senators enthusiastically backed Kavanaugh, a fixture in GOP legal circles for two decades, while the others expressed few explicit reservations about him.
Meanwhile, Democrats — who remain furious over McConnell’s 2016 move to block President Barack Obama from placing his own nominee on the court — believe their best chance to defeat Kavanaugh lies in highlighting the stakes for average Americans, not in re-litigating past political battles.
Numerous Democratic senators, led by Minority Leader Charles E. Schumer (D-N.Y.), said Tuesday that Kavanaugh’s confirmation would cast into doubt a woman’s constitutional right to an abortion and the viability of the Affordable Care Act.
“The substance is the way to win this,” Schumer said. “The American people care about their substantive rights being taken away, whether they be civil rights, whether they be labor rights, whether they be health-care rights, whether they be a woman’s right to choose. That’s what we’re focusing on.”
The strategy is aimed in part at turning public opinion against Kavanaugh’s confirmation, but it is more firmly aimed at the votes of two moderate Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom tend to support abortion rights and voted last year to reject a bill that would repeal key parts of the ACA.
Democrats are hoping to recapture the energy of the successful push to derail the Republican health-care effort, which, nearly a year later, still stands as the crowning achievement of the liberal “resistance” to President Trump. Key senators drew direct parallels Tuesday between that fight and the push to reject Kavanaugh.
“When everyone thought we were going to lose the Affordable Care Act, it was going to be repealed, we made the case to the American people, and we got not one, not two, but three Republicans to vote for us,” said Sen. Amy Klobuchar (D-Minn.). “It is the same scenario.”
Then as now, united Democratic opposition is not enough to derail Republicans. The Senate has a 51-seat GOP majority, meaning Kavanaugh could be confirmed even if all 49 Democrats and independents are opposed.
Speaking to reporters Tuesday, both Collins and Murkowski said they intended to closely examine Kavanaugh’s record and question him in private meetings about his judicial philosophy and temperament. Both voted to confirm Justice Neil M. Gorsuch, who had a similar résumé, for the court last year, and neither shared any major reservations about Kavanaugh.
“The tough job, I think, for all of us is to go to work,” Murkowski said. “We’ve got some due diligence we’ve got to do.”
Collins offered praise for Kavanaugh’s résumé while saying that “judicial temperament and his judicial philosophy” would also be weighed in her decision.
“It will be very difficult for anyone to argue that he’s not qualified for the job,” she said. “He clearly is qualified for the job.”
Sen. Rand Paul (R-Ky.) — a Trump ally who has expressed reservations about Kavanaugh, in particular his rulings on health care — tweeted late Monday that he would keep an “open mind” on the selection. But White House officials said Tuesday that they would continue to engage him, as would the president, who called Paul last week to hear his view on the search process.
Whether Senate Democrats will stay united in opposition to Kavanaugh is also in question. Ten incumbent Democrats are seeking reelection this year in states that Trump won in 2016, and three of them — Sens. Joe Donnelly (Ind.), Heidi Heitkamp (N.D.) and Joe Manchin III (W.Va.) — voted to confirm Gorsuch. Another Democrat representing a conservative state, Sen. Doug Jones (Ala.), was not in the Senate to vote on Gorsuch.
Those four senators, like Collins and Murkowski, avoided making any definitive statements about their positions Tuesday.
“I told the president that I thought a justice in the mold of Anthony M. Kennedy would be important, someone who is moderate and common sense,” Sen. Joe Donnelly (D-Ind.) told reporters. He said he would wait until after the hearings to make a decision.
Manchin said his decision would depend in part on what he heard back in town halls back home. “It’s all about West Virginia,” he said.
Most Democrats have adopted a more combative stance on Kavanaugh — including Schumer, who declared in a CBS News interview Tuesday morning that he would “oppose him with everything I’ve got.”
Nearly a dozen other Democrats had announced their opposition to Kavanaugh by Tuesday night, including several senators considered likely to seek the party’s 2020 presidential nomination.
Several in that group — which includes Sens. Cory Booker of New Jersey, Kirsten Gillibrand of New York and Kamala D. Harris of California, as well as independent Bernie Sanders of Vermont — seized on other aspects of Kavanaugh’s record, pointing to his potential hostility to other liberal priorities as well as his expansive views on presidential power.
Booker highlighted Kavanaugh’s writings, including a 2009 law review article, arguing that a sitting president should not be subject to criminal investigations or civil lawsuits while in office. That, Booker said, raised a question of conflict of interest, given that aspects of the pending investigation into Trump led by special counsel Robert S. Mueller III could come before the high court.
“The president of the United States should not be able to pick the judge that will preside over questions involving his investigation,” Booker told reporters.
While McConnell projected that Kavanaugh could be seated by fall, the precise timeline remained sketchy Tuesday. Schumer said Democrats want “access and time” to dig into a trove of documents that could amount to several hundred thousand pages, dating back to the nominee’s stint as White House staff secretary under President George W. Bush.
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said it could be nearly two months before Kavanaugh gets a hearing. “I don’t see how you could be ready by Labor Day,” he said. “Ask me in a couple weeks. I’ll have a better feel of it.”
In the background, a constellation of liberal activist groups promised Tuesday to mobilize their members and pressure both Republicans and Democrats to oppose Kavanaugh.
They are set against a well-established network of conservative organizations doing the same to promote Kavanaugh’s confirmation, led by the Judicial Crisis Network, which has pledged to spend $10 million on the coming battle. In the latest JCN salvo, totaling $1.4 million, the group will air a spot highlighting Kavanaugh’s biography in Alabama, North Dakota, Indiana and West Virginia — red states with Democratic senators.
Kavanaugh is set to get a $5 million boost from the Great America PAC and Great America Alliance, two independent groups supporting Trump’s agenda. The groups’ organizers said they will launch a campaign next week to confirm Kavanaugh built around cable television, radio and digital ads in seven states won by Donald Trump in 2016 where Democratic senators are campaigning for reelection.
Demand Justice, a liberal group formed to counter JCN’s influence, has placed ads in Alaska and Maine targeting Murkowski and Collins. Brian Fallon, the group’s executive director, said Tuesday that the group would place more ads targeting Democrats in North Dakota, Indiana and West Virginia — with a focus on the risk that Kavanaugh’s confirmation could represent to the ACA.
Schumer, Sanders, and Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the Judiciary Committee, gathered behind closed doors inside the Capitol Tuesday afternoon with leaders of a vast constellation of liberal activist groups to strategize over the court battle. Among the attendees were Fallon, American Federation of Teachers President Randi Weingarten and Alliance for Justice President Nan Aron, a veteran of confirmation battles since the 1980s.
Schumer implored the outside groups to not push the Trump-state Democrats too hard to oppose Kavanaugh, according to one attendee, who requested anonymity to discuss the private meeting. Instead, Democratic leaders want to keep the tightest pressure on the two moderate Republicans and believe that as long as Collins and Murkowski are undecided, that will help keep any wavering Democrats from supporting Kavanaugh.
Fallon said after the meeting that the focus of the campaign will continue to be on health care. “It’s already the No. 1 issue in America,” he said.
Fears that Kavanaugh’s ascension to the Supreme Court would threaten the ACA are largely based on his 2011 dissent in a case that upheld the law’s constitutionality. The opinion was based on procedural objections, but he suggested that the scope of the law’s mandate to purchase insurance was “unprecedented on the federal level in American history.”
But the political ramifications are far from clear. Manchin said that the health-care questions gave him “great concern,” while Collins entirely rejected any comparison between her confirmation vote and her vote on the ACA repeal legislation.
“This is a vote for the Supreme Court nominee; it’s not a legislative vote,” she said. “There’s no parallel at all.”
Robert Costa and Michael Scherer contributed to this report.