WASHINGTON – In the budding battle royale over the Supreme Court vacancy, what’s the Democratic sweet spot between satisfying liberal activists’ demands for an all-out fight against President Donald Trump’s pick and protecting senators facing tight re-election races in deeply red states?
So far, the party’s formula is to cast itself as defending the right to abortion and the 2010 health care law against a president itching to use the court to snatch both away. Democrats want to make it as excruciating as possible for a pair of moderate, pivotal Republican senators to back the selection because without a GOP defection, it’s game over.
Trump plans to unveil his choice Monday, less than two weeks after Justice Anthony Kennedy announced his retirement. Democrats seem to face an uphill battle to derail the pick, due to the sky-high stakes and the country’s hyper-partisan political climate.
The fight will be intense, fueled by Kennedy’s status as the court’s frequent swing vote and the GOP’s hair-thin 51-49 Senate majority — effectively 50-49 since January, with Sen. John McCain battling cancer in Arizona. If Republicans remain united, Democrats can’t stop a nominee, though either way it offers both parties a golden chance to raise money and galvanize voters.
Yet the brewing fight is already highlighting Democratic strains.
With congressional control at stake in November’s elections, likely just weeks after the nomination fight culminates, Democrats must nurture an energized, anti-Trump liberal base spoiling for a fight. And if a Republican is prepared to oppose the pick, the pressure to vote “no” will be unrelenting on three wavering moderate Democrats seeking re-election in states Trump won overwhelmingly in 2016: Indiana’s Joe Donnelly, West Virginia’s Joe Manchin and North Dakota’s Heidi Heitkamp.
“I want them to hold the line and I don’t want them to cave,” said Winnie Wong, political adviser of Women’s March.
Wong said her group was planning marches, rallies and “massive civil disobedience” and said Senate Minority Leader Chuck Schumer, D-N.Y., should press all Democrats to oppose Trump’s nominee. Women’s March helped organize a noisy Senate office building protest against Trump immigration policies last week in which nearly 600 women were arrested.
But if Republicans have the votes to prevail, some Democrats looking ahead to November want to give the three moderates room to stray if they so decide.
“There’s a reason we still have the ACA, okay?” Jim Kessler, vice president of Third Way, the centrist Democratic group, said of former President Barack Obama’s Affordable Care Act, which the Senate narrowly blocked Trump from dismantling last year. “And that’s because we have these senators.”
Republicans are underlining Democratic opposition to a nominee who’s not yet been named. “Radical Left Takes The Reins,” headlined an email aides to Senate Majority Leader Mitch McConnell, R-Ky., sent reporters.
Previewing Democrats’ strategy, a collection of liberal groups said Thursday that Trump’s nominee must explicitly endorse the rights to abortion, contraception and same-sex marriage and voice support for Obama’s health care statute. They said none of his potential picks are likely to do so, based on Trump’s views.
The liberals aimed their comments at GOP Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, who have defended abortion rights. Collins has said she would not back someone hostile to Roe v. Wade, the 1973 Supreme Court decision that established the right to abortion. The groups said her litmus test was insufficient because past nominees have said they’d honor precedents but ruled otherwise as justices.
Senators “need to be examining their conscience and their moral maps and stand with us,” Ilyse Hogue, president of NARAL Pro-Choice America, told reporters. “And if they don’t, they need to examine their political futures.”
Schumer this week called abortion rights and the health care law “the most consequential issues” at stake in the fight. By painting those guidelines in a New York Times column, Schumer offered a roadmap for Donnelly, Manchin and Heitkamp.
Their states’ conservative voters would be uncomfortable with a senator voting “no” based on abortion rights. But defending Obama’s health care law is popular, especially provisions like its protections for people with pre-existing medical conditions. That could give those endangered Democrats a safer political pathway to opposing the pick.
“We’re only going to succeed in defeating his nominee if we make it politically popular to vote against her or him in those red states,” said Brian Fallon, a former top Senate Democratic aide and executive director of Demand Justice, a new organization helping lead the fight. “So if they end up voting against that person, it will be the safe political move as well as the right thing to do.”
Donnelly, Heitkamp and Manchin discussed the vacancy in meetings with Trump last week and issued noncommittal statements afterward.
Liberal organizations are already preparing the battlefield. The anti-Trump group Indivisible is organizing demonstrations around the country next week. Abortion-rights groups are planning a “Day of Action” for August 26, the anniversary of the 1920 adoption of the 19th Amendment giving women the right to vote.
And Fallon says Demand Justice will spend $5 million on ads through September and began airing spots Thursday in Maine and Alaska. “Why won’t she rule out voting for Trump’s anti-choice picks?” both ads ask.
It also plans spots next week in Manchin’s, Donnelly’s and Heitkamp’s home states with a softer tone, asking them to continue protecting patients with pre-existing conditions by opposing a nominee who’d threaten that.