Battles over Supreme Court seats usually revolve around issues like abortion, guns, free speech, and civil rights. But the ensuing fight over Trump’s pick to replace the retiring Justice Anthony Kennedy will prominently feature something new: Obamacare.
Many Senate Democrats are trying to sink the nomination of Judge Brett Kavanaugh by arguing the 53-year-old conservative justice will strike down health insurance protections in the Affordable Care Act.
“If this judge is confirmed, then there is a dangerously high likelihood that he will strike down the Affordable Care Act,” Sen. Kirsten Gillibrand said in a recent speech on the Senate floor explaining her opposition to Kavanaugh, who’s ruled in related cases during his years as a D.C. circuit court judge.
Senate Minority Leader Chuck Schumer also made clear that healthcare would be central to the Democrats’ messaging strategies. The campaign is in full swing already, with senators’ doing an endless series of press conferences, and outside progressive groups rallying members to call and protest their lawmakers, as well as funneling millions into online and TV advertising, particularly in states with undecided senators.
“We Democrats believe the number-one issue in America is healthcare and the ability for people to get good healthcare at prices they can afford,” Schumer told reporters in a press conference Tuesday. “The nomination of Mr. Kavanaugh would put a dagger through the heart of that cherished belief that most Americans have.”
Democrats’ unapologetic embrace of the Obama-era healthcare law is a reversal from just a few years ago when liberal politicians considered it a political liability and were quicker to acknowledge the law’s flaws than try to tout what they considered its strengths. But the Trump administration’s early efforts to repeal the law has had the unintended effect of making the law more popular among voters, according to Gallup.
Democrats successfully defeated the Republican efforts to repeal and replace Obamacare and hope healthcare can rally opposition to Trump’s Supreme Court pick since several challenges to Obamacare are still making their way through the lower courts and could end up on the highest court’s docket in the coming years.
Democrats cite Kavanaugh’s rulings in a 2016 case about Obamacare’s contraception mandate and another 2011 case on the law’s constitutionality. In both cases, Kavanaugh wrote dissenting opinions that criticized Obamacare provisions on technical but not constitutional grounds. As a result, neither opinion is a clear predictor for how he would rule on future health care cases.
In 2016, Kavanaugh sided with Priests for Life, a group challenging the contraception mandate, but added that Supreme Court precedent “strongly suggests that the government has a compelling interest in facilitating access to contraception.” Kavanaugh suggested, however, that the health care law could have been “less restrictive” in its efforts to ensure access to contraception.
And Kavanaugh’s 2011 dissent argued that the D.C. Circuit Court shouldn’t have taken up the case until the law had been fully implemented in 2014. “I do not take a position here on whether the statute as currently written is justifiable under the Taxing Clause or the Commerce Clause,” Kavanaugh wrote, sidestepping the larger issues.
Still, Democrats believe that healthcare is the most favorable battlefield in what is their unlikely attempt to vote down Kavanaugh. A Navigator Research survey conducted last week found that 91 percent of Americans said it was important to know the next Justice’s views about the Affordable Care Act, especially its protections on pre-existing conditions.
Such poll numbers may manage to unite Democrats behind a health care-first message, but Kavanaugh may be confirmed anyway. Democrats must also convince at least one Republican to vote against President Donald Trump’s pick since Republicans currently have a 51-49 majority and Vice President Mike Pence breaks any tie (Arizona Sen. John McCain is currently absent getting treatment for brain cancer, so it’s current a 50-49 Republican majority).
The last time Democrats swayed Republicans to vote against one of Trump’s biggest priorities was over Obamacare during last summer’s fight over repealing it. Sens. McCain, Lisa Murkowski of Alaska, and Susan Collins of Maine all voted no.
So far, however, Collins and Murkowski have praised Kavanaugh’s nomination and have voiced skepticism about the Democrats’ Obamacare arguments. “There is no parallel,” Collins told reporters this week. “This is the Supreme Court; it’s not a legislative body.”
Even if Democrats can’t sway a Republican to join them in opposition, the party still thinks a health care message will help it in the November elections when the Senate and House could both flip from Republican to Democratic control. Democratic candidates have already been bashing Republicans for over a year for trying to repeal the Affordable Care Act and highlighting health care during the Supreme Court battle complements that messaging.
Or as Democratic Sen. Brian Schatz of Hawaii told Politico this week: “I think we should keep talking about healthcare every day from now until the election.”
Cover image: Senate Minority Leader Charles Schumer, D-N.Y., and Democratic senators conduct a news conference in the Capitol to oppose the nomination of Brett Kavanaugh to the Supreme Court because the say he would be open to questions about the constitutionality of the Affordable Care Act on July 11, 2018. (CQ Roll Call via AP Images)