As President Trump’s Supreme Court nominee, Brett Kavanaugh, made the rounds Tuesday on Capitol Hill, early contours of what is likely to be a bitter confirmation battle began to take shape.
Democrats, who had previously focused largely on the impact to legalized abortion, began shifting their focus to the threat Trump’s pick might pose to the survival of the 2010 Affordable Care Act. Not only has healthcare proved to be a galvanizing force for the party’s supporters, it’s far less divisive than abortion.
Republicans, meanwhile, are working to soften Kavanaugh’s image as a political operative who has been at the center of some of the most partisan battles of the last two decades. The White House and its surrogates are instead drawing attention to the nominee’s impressive credentials and what they see as his commitment to women and diversity.
Both strategies face steep hurdles.
Trump introduced Kavanaugh, 53, as his selection to replace retiring Justice Anthony M. Kennedy on Monday night. The fight now moves to the Senate, which must confirm the nominee.
With Arizona Republican Sen. John McCain absent for brain cancer treatment, Republicans hold a 50-49 advantage, leaving Kavanaugh’s fate in the hands of a small group of moderates and fence-sitters from both political parties.
When Kennedy announced last month he would step down, Democrats quickly made abortion a central issue, because his replacement could shift the balance that has preserved the landmark 1973 abortion ruling Roe vs. Wade. Kennedy voted in 1992 to reaffirm that decision.
That move was seen as a way to pressure two moderate GOP women, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, who both support abortion rights.
But to hold onto Democrats representing conservative states won by Trump, Democrats are increasingly talking about how Kavanaugh might shift the balance on President Obama’s healthcare law, a unifying issue that tends to poll well. And so far it seems to be working on vulnerable Democrats in red states.
Sen. Joe Manchin III of West Virginia — who last year voted for Trump’s first Supreme Court selection — immediately picked up on the talking point, saying that he would consider the “nearly 800,000 West Virginians with preexisting conditions” when making his confirmation vote.
Though Manchin promised to keep an open mind, the statement suggested a willingness to vote against the nomination, bucking Trump, who is popular in his state.
Sen. Joe Donnelly (D-Ind.) told CNN that requiring insurance companies to cover preexisting conditions would play a “central part” in his consideration.
It’s true that Republican efforts to repeal Obamacare might make their way back to the Supreme Court, which has twice upheld the law. Problem is, the deciding vote in those decisions was not Kennedy but Chief Justice John G. Roberts Jr., who will remain on the court.
Even so, Democrats note that Roberts may vote differently in the future as new challenges reach the court, particularly a federal suit in Texas that argues that after Congress last year repealed the provision requiring individuals to have insurance, the rest of the law must be scrapped as unconstitutional.
Senate Minority Leader Charles E. Schumer said Tuesday on the Senate floor that Kavanaugh would vote to overturn both Roe and the Affordable Care Act, based on Trump’s campaign promise to pick a nominee who would strike them down.
“That is President Trump’s litmus test, and it couldn’t be clearer,” Schumer said.
Though Trump promised during his campaign to nominate only “pro-life” justices and Kavanaugh was chosen from a list vetted by the conservative Federalist Society, the White House is now insisting abortion isn’t a central issue.
“That’s a scare tactic” from the left, said Kellyanne Conway, a White House counselor.
Collins, who faces immense pressure from both sides, has said she would have concerns about a nominee who had open hostility to Roe or did not believe in respecting court precedents. She said Tuesday that she would “probe deeply on a number of issues,” including abortion rights.
On the other hand, Collins also praised Kavanaugh’s experience. "When you look at the credentials that Judge Kavanaugh brings to the job, it will be very difficult for anyone to argue that he's not qualified for the job," she told reporters.
The White House effort to appoint Kavanaugh has been unusually well organized, the smoothest since Trump’s last Supreme Court nomination, of Neil M. Gorsuch. Officials provided supporters with talking points only minutes after Monday’s announcement. A group of 34 former law clerks released a letter praising Kavanaugh’s warmth, qualifications, even-handedness, mastery of details and deference to precedent.
While Trump traveled to Europe for NATO meetings Tuesday, Vice President Mike Pence accompanied Kavanaugh to Capitol Hill and led a blitzkrieg of media appearances. A taped interview with the conservative Sinclair Broadcasting Group went to 200 local television stations around the country. He spoke to radio shows in West Virginia, Manchin’s home state, and Indiana, the home state of Donnelly. The vice president also granted interviews to CNN and Fox.
“Messaging-wise, the big thing you’re going to hear is this is a mainstream pick with a demonstrable record,” said a White House official who did not want to be identified speaking about the internal process.
Kavanaugh is already playing an active part in his repackaging. During his remarks Monday, he cracked jokes about his two young daughters and spoke about coaching their sports teams. He praised his mother, also a judge, for advising him to use common sense in applying the law. He noted that the majority of his clerks have been women and even gave a nod to Elena Kagan, an Obama appointee to the high court who hired Kavanaugh at Harvard Law School.
Trump has made a virtue of picking outsiders for important positions, and Kavanaugh has already been attacked for his paper trail. But Kavanaugh’s polish and political experience showed in his initial speech, and White House officials believe it will be an asset in his Senate confirmation.
“It helps to have somebody who knows senators, who knows where their offices are,” said Jon Kyl, a Republican and former Arizona senator chosen to guide Kavanaugh through the confirmation process.
One senior White House advisor compared the confirmation process to a marketing campaign with an “incredible product.”
The White House also blanketed the airwaves with a diverse set of former law clerks and other surrogates, including women and minorities who tried to cast Kavanaugh in a less partisan light.
But Kavanaugh’s lengthy time in Washington could be a boon for Democrats hoping to find an issue to scuttle his nomination. And many scoff at the attempt to recast the longtime partisan warrior as a neutral jurist.
“His record on the bench, in the Bush White House and as a Republican political operative indicates that if confirmed he would be one of the most conservative justices in Supreme Court history,” said Sen. Dianne Feinstein of San Francisco, the highest-ranking Democrat on the Senate Judiciary Committee.
Kavanaugh was once labeled the “Forrest Gump of Republican politics” by Illinois Sen. Richard J. Durbin, the second-ranking Democrat, because he surfaced in so many prominent historical moments.
Kavanaugh wrote the final report on behalf of independent counsel Kenneth W. Starr that led to impeachment charges against President Clinton. He worked on the George W. Bush legal team that won the 2000 Florida recount, and was among the attorneys who sued the Clinton Justice Department to prevent Elian Gonzalez from being sent back to Cuba after his mother died trying to flee the island. He also spent five years crafting legal policy in the Bush administration, which took an expansive view of executive power.
Kavanaugh's decades in the public sphere have probably created millions of public documents, and Delaware Sen. Chris Coons emphasized that Democrats expect to have time for a thorough review of “every single record that might be relevant.”
“Then and only then should we have a hearing and take a vote,” Coons said.
That hearing will probably include some probing questions about a 2009 law review article written by Kavanaugh in which he argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office. It was a sharp reversal for someone so involved in the Starr investigation.
Democrats plan to question Kavanaugh about those statements, particularly since the issue could reach the Supreme Court. His defenders note that Kavanaugh argued that Congress should pass a law to shield presidents, not that judges should act on their own to do so.
Trump is facing his own investigation into Russia collusion and obstruction of justice by special counsel Robert S. Mueller III. Democrats say Kavanaugh’s views on presidential investigations may have played a role in why Trump selected him.
“He is almost certainly the one who would most yield to presidential power,” Schumer said.