The Supreme Court nomination of Judge Brett Kavanaugh has put Democrats in a dilemma.
Their path to winning back the Senate is through red states, where a vote for Kavanaugh would show Republican voters at home their independence from Democrats in Washington. But that vote will come at a time when the liberal base demands total opposition to President Trump.
The stakes could not be higher. Kavanaugh is expected to turn the Court to the right even further than the man he’d replace, Justice Anthony Kennedy, a conservative who sided with liberals on some high-profile issues, including gay marriage and abortion rights. The choice has divided Democrats.
“We have to be so careful with our colleagues who are from red states,” said Sen. Dick Durbin of Illinois in an interview. “We’ve got to give them the room to make a decision on their own. If it appears that they’re caving to pressure, it’s not going to help and it may create a backlash.”
Democratic activists like Brian Fallon disagree. After stints working for Sen. Chuck Schumer, the Justice Department, and the Hillary Clinton campaign, Fallon created Demand Justice to try to counter the Republicans’ successful strategy of getting their voters out on the powerful issue of the courts, winning the Senate and White House, and then filling those courts with conservative lifetime appointments.
Even before Senate Majority Leader Mitch McConnell blocked President Obama’s Supreme Court nominee Merrick Garland, and paved the way for Trump’s nominee, Neil Gorsuch, Democrats have long believed that they’ve been outplayed on the issue. In 2007, Schumer said his “greatest regret” the previous Congress was not doing more to block George W. Bush nominee Samuel Alito.
In a 2017 National Journal interview, Schumer recalled that then-Democratic leader Harry Reid had told him they were “three or four votes short” of blocking Alito. “I should’ve pushed Harry harder,” Schumer said. A filibuster attempt failed when 19 Democrats voted to advance the nomination; Alito was ultimately confirmed with all Republican and four Democratic votes.
Now, Fallon is trying to stir up enthusiasm on the Left by leading a multimillion-dollar ad campaign pressuring not only moderate Republicans, but also Democrats to spike Judge Kavanaugh.
“I do not actually believe it will hurt red-state Dems to vote no on Kavanaugh,” emailed Fallon, citing a recent poll the Center for American Progress and his group commissioned in Indiana, Missouri, North Dakota, and West Virginia at the beginning of July.
The survey showed that a slim majority— 52 percent—would support a senator for opposing Trump’s nominee if he was “likely to overturn/eliminate protections in ACA for pre-existing conditions, people over age 50, women.”
Demand Justice’s first ads chose that message, and aimed it at Sens. Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana. All three of those senators voted for Gorsuch last year.
The ads thank the senators for protecting those with preexisting conditions from attacks on the Affordable Care Act that failed last year, and warn that Kavanaugh could end those protections should he be confirmed. While he’s a conservative judge, Kavanaugh in his time on the D.C. Circuit Court of Appeals did not rule the ACA unconstitutional.
But some Democrats worry that trying to convince their vulnerable senators to oppose Kavanaugh is a waste of money.
“If we’re talking about the Supreme Court in those states, we’re not winning, we’re losing,” said one Senate Democratic strategist. “‘Support Senator Donnelly to oppose Donald Trump’—that’s the worst thing you can say in Indiana.”
And a Democratic pollster for Senate campaigns said the Kavanaugh vote gives senators “a new chance to show that they’re working across party lines.”
The pressure on the Left to oppose Kavanaugh is just the latest sign in how the battles over the Supreme Court have dramatically escalated over the past 30 years. Judges used to be measured on experience, temperament, writing, and scholarly ability. Now they’re pawns in a political fight over Senate control and the ideological makeup of the Court. In 1988, nobody voted against Kennedy when he was nominated by President Reagan. Now Kavanaugh can expect almost every Democrat to oppose him.
A constellation of conservative groups have announced campaigns supporting Kavanaugh in states including Indiana, West Virginia, and North Dakota. The Koch-backed Americans for Prosperity, Judicial Crisis Network, Heritage Action, the antiabortion group Susan B. Anthony List, the pro-Trump America First Policies, and McConnell-linked One Nation have already announced several millions of dollars devoted to the effort.
Still, there’s a question of how much all the money really matters in red states far removed from the political debate in the capital.
Former Democratic Sen. Byron Dorgan of North Dakota said that his state knows, likes, and trusts Heitkamp and is focused much more on the president’s trade wars.
“In many ways, this issue, as important as it is, is going to be overwhelmed by what the president is doing in a manner that affects the price of hogs, and the price of soybeans and the price of steel,” he said. “There isn’t a farmer, a livestock producer, or a small manufacturer that doesn’t fully understand that their livelihood is at stake.”