If Democrats want to block President Donald Trump from appointing another Supreme Court justice before the November elections, they must convince at least two Republicans and every Democrat to oppose Trump’s nominee.
It’s a very narrow, but not impossible, pathway to prevent the Republican Party from resetting the ideological balance of the court. Republicans currently only have a 51-49 majority and use Vice President Mike Pence as the tiebreaker vote, when necessary. But so far, the Democratic response to Anthony Kennedy's retirement has been more scattered than united, revealing divisions among Democratic lawmakers and between the party’s liberal base and its leadership.
The base of the party wants a fight. Progressive groups and liberal activists have already called for party leaders to throw anything and everything behind stopping the nomination from going forward. They want to stir up another rebuke of the president’s plans, much like what happened when Republican Sens. Lisa Murkowski, Susan Collins, and John McCain voted to kill Trumpcare.
“Conventional wisdom said that the resistance didn’t stand a chance to defeat Trumpcare. But we fought and we won,” wrote the Indivisible Project, one of the leading resistance groups of the Trump era, in an email to its members last week. “There’s a similarly narrow pathway to victory to save the Supreme Court.”
But this Senate also already confirmed one conservative justice to the Supreme Court — and Murkowski, Collins, McCain, and three Democrats all voted in favor of Neil Gorsuch last year. Perhaps given that history, some of the party’s leaders seemed less inclined to fight and attempted to lower expectations.
“The grim reality is that we have some power but not the power to stop this,” Sen. Dick Durbin of Illinois, the second-highest ranking Democrat, told The New York Times this week. “I’m sure many of them believe we have the power to stop this,” he said of the party’s base.
And that’s not to mention the divisions that already exist among Democrats in the Senate. The more liberal members of the Senate — many of whom are eying runs for the presidency — have been channeling the fight-or-die attitude of progressives, while more moderate senators have taken a wait-and-see tact.
“The grim reality is that we have some power but not the power to stop this.”
“This is a line that's been drawn about whether we are going to criminalize women, whether we are going to be arresting women for making decisions about their bodies,” Sen. Kirsten Gillibrand of New York said at a rally last week. “This is not a fire drill,” she said. Gillibrand, who may run for president in 2020, has been among the biggest critics of the president and was the first senator to call for the abolition of ICE, a cause that had been gaining traction among the party’s base.
But Sen. Heidi Heitkamp of North Dakota, who is running for reelection in a state Trump won by 36 points in 2016, was noncommittal.
"I stressed the importance of nominating someone to the Supreme Court who is pragmatic, fair, compassionate, committed to justice, and above politics," Heitkamp said in a statement after meeting with Trump.
Heitkamp voted for Gorsuch last year and Trump dared her to vote against him this time around. “Heidi will vote no on any pick we make to the Supreme Court,” he said at a rally in her home state last week. “You need a senator who doesn’t just talk like they are from North Dakota but votes like they are from North Dakota.”
Sen. Doug Jones of Alabama also took a more circumspect stand and said only that “I hope to have someone who is qualified.”
What do the leaders want?
The Democratic leadership’s messaging strategy has also been in a constant state of evolution. At first, party leaders accused Republicans of being hypocrites for trying to confirm a Supreme Court justice in the months before an election after they blocked Barack Obama’s pick in 2016. Senate Minority Leader Chuck Schumer’s initial reaction to Anthony Kennedy’s retirement focused on this process argument.
But Republicans argued that a midterm election isn’t the same as a presidential election and pointed out that the Senate had approved scores of Supreme Court justices in the months before previous years’ midterm elections.
Even if that weren’t true, Republicans had the majority during 2016 and so had the power to block Obama’s nomination. The Republican party was also willing to exercise that power despite procedural criticism. Now, the GOP still has the majority and the power to move Trump’s nomination forward. Conservative lawmakers appear ready to move forward again — regardless of attacks about the process.
Murkowski and Collins have voiced concerns about the future of Roe v. Wade and abortion rights, although neither of them have ruled out voting for a conservative justice. Trump has consulted with both of them as he makes his pick to ensure their votes.
Perhaps because the process argument wasn’t sticking — or in an effort to sway Murkowski and Collins — Democratic leaders have pivoted and begun highlighting the potential policy consequences of a new Supreme Court justice, particularly on abortion rights and health insurance regulations. Schumer, for example, wrote New York Times op-ed focused on Monday that urged people to call their senators to preserve the right to have an abortion.
“If you do not want a Supreme Court Justice who will overturn Roe v. Wade and undo the Affordable Care Act, tell your senators they should not vote for a candidate from Mr. Trump’s preordained list,” he wrote.
Durbin also warned on Fox News Sunday that Trump is “looking for someone on the court who will make sure that they rule that the Affordable Care Act's protection of those with pre-existing conditions is unconstitutional.”
With or without clear Democratic opposition, however, Trump said he’ll announce his pick on July 9th.
Cover image: President Donald Trump, left, and Supreme Court Justice Anthony Kennedy participate in a public swearing-in ceremony for Justice Neil Gorsuch in the Rose Garden of the White House White House in Washington, Monday, April 10, 2017. (AP Photo/Carolyn Kaster)