(Bloomberg) -- With little chance of thwarting President Donald Trump’s eventual Supreme Court pick, Democrats are pivoting to frame the confirmation battle as an issue in fall elections that will decide control of Congress.
Speaking a day after Justice Anthony Kennedy announced he would retire, Minority Leader Chuck Schumer said Trump’s nominee could overturn Obamacare protections for people with pre-existing conditions, an emerging issue in Democratic election bids, and abortion rights.
“Whomever the president picks, it is all too likely they’re going to overturn health-care protections and Roe v. Wade,” Schumer said Thursday on the Senate floor. “We don’t need to guess. President Trump has said time and time again he would appoint judges that would do those two things.”
Republicans were viewing the court vacancy through a political prism as well, with GOP lawmakers in the House and Senate predicting it would motivate their base as they try to unseat Senate Democrats in states Trump won in 2016 and defend their party’s House seats in swing districts from New Jersey to California.
The confirmation process promises to be a partisan brawl, but one where Republicans have most of the control over the clock. Trump aims to have a replacement for retiring Supreme Court Justice Anthony Kennedy confirmed in time to join the court for its new term in October, White House legislative affairs director Marc Short said. Senate Majority Leader Mitch McConnell of Kentucky also said on Fox that he hoped to have a justice in place by the opening of the court’s new term.
Senate Majority Whip John Cornyn told reporters that delaying the process until after the November election, as demanded by Democrats, “ain’t gonna happen.”
Republicans have a 51-49 majority in the Senate, and second-ranking Democrat Dick Durbin of Illinois said Thursday there is little Democrats can do to stop the nomination unless some Republicans defect. Virtually all Republican senators have supported Trump’s lower-court selections and most have spoken favorably about Trump’s list of 25 candidates for the Supreme Court.
Trump’s choice to replace Kennedy could produce the most conservative court in generations and provide the fifth vote needed to overturn the landmark 1973 Roe v. Wade abortion-rights ruling, a decades-long aspiration of the Republican Party.
Senator Amy Klobuchar of Minnesota, a top Democrat on the Judiciary Committee, said that no matter who is chosen, confirmation will rest on the decisions of two GOP senators: Susan Collins of Maine and Lisa Murkowski of Alaska. Both have expressed support for Roe v. Wade, and last year they displayed a willingness to split with their party when both voted to defeat the GOP Obamacare repeal effort.
“This will be a very big moment for them,” Klobuchar told reporters.
Murkowski has said the abortion-rights case will be a factor she’ll weigh, but not the only one. Collins said she considers Roe v. Wade settled law. Both voted for Trump’s first Supreme Court nominee, Justice Neil Gorsuch.
On Thursday night, Trump met at the White House with Collins, Murkowski and Senate Judiciary Committee Chairman Chuck Grassley of Iowa, along with swing state Democratic senators Joe Manchin of West Virginia, Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota. They discussed the Supreme Court opening, according to the president’s press secretary.
At a Judiciary Committee meeting Thursday morning, ranking Democrat Dianne Feinstein of California pointed to the political energy of women in 2018 as a reason the confirmation should be put off until after the elections.
“Women in this country have never been more galvanized,” she said, pointing to the record number of women running for office and participating in marches.
But with Republicans determined to move ahead, a turnout boost from women and other voters in the Democratic base may be the best the party can yield from Kennedy’s retirement.
“What really arouses a lot of people is opposition,” said Senator Richard Blumenthal, a Connecticut Democrat. “And I would expect that the emotion and passion and energy against the nominee would be very substantial if he or she is a right-wing ideologue as almost all the people on his list are.”
Still, Republicans in both chambers insist there will be plenty of added election-year energy on their own side. Representative Bill Flores, a Texas Republican, said Kennedy’s retirement “really changes the dynamic” of November’s election and will be hugely motivating for voters.
“We’re been looking for an issue that can really motivate our base,” Flores said, adding that for Democrats, “Their ‘Hate Trump’ movement is already so strong that they don’t have a lot more to gain in voter enthusiasm.”
As abortion emerges as a central issue in the confirmation, polls show that Americans’ views on it continue to be evenly divided. A May 1-10 Gallup poll found 48 percent of adult Americans said they are pro-choice and 48 percent said they are pro-life. But views on abortion are nuanced, with a majority believing it should be legal in at least some circumstances.
Polls also reflect the country’s entrenched political divide. A Pew Research Center poll in 2017 found that about two-thirds of Republicans say abortion should be illegal in all or most cases, while three-quarters of Democrats say it should be legal.
That gives both parties justification for their stances and makes it likely their arguments won’t change minds.
A string of recent 5-4 votes on the high court is also adding to the potential for party unity for and against the nominee. Kennedy voted this week with the court’s conservatives on a 5-4 decision to uphold Trump’s travel ban as a legitimate exercise of the president’s authority to protect national security, rejecting arguments that Trump singled out Muslims. It was the most prominent in a series of narrowly decided cases this term that will have interest groups on both sides devoting massive resources to sway senators.
‘Our Courts Matter’
Democratic Senator Chris Coons of Delaware, a member of the Judiciary Committee who sometimes votes with Republicans, didn’t sound very compromising Thursday.
“In just the past few weeks, as the Supreme Court has issued decisions on voting rights, taxes, privacy, labor rights, executive power and police searches, we’ve seen as clearly as ever that our courts matter in the lives of every American,” Coons said in a statement. “I will exercise my role as a senator and Judiciary Committee member to stand up for the rights and liberties of Americans against efforts to reverse the precedents that protect them.”
A few Democrats are treading carefully. That includes Manchin, one of a half-dozen Democratic incumbents in competitive 2018 races in states that went for Trump two years ago. Manchin has been making Attorney General Jeff Sessions’s decision not to defend Obamacare’s pre-existing condition protections an issue in his re-election campaign. Schumer highlighted the issue among reasons to fight Trump’s court pick.
But the sudden emergence of abortion on the agenda seemed to be a difficulty for the anti-abortion Democrat, one of the three in his party who voted to confirm Gorsuch. He deflected when asked by a reporter if he’d want a nominee who would overturn Roe.
"You’d have to be completely insane if you think I’m going to speculate on who he’s going to give us," Manchin said.
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