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Senate Battle Lines Drawn Over Kavanaugh Supreme Court Nomination

By William Roberts

July 18, 2018

D.C. Circuit Judge Brett Kavanaugh
Photo Credit:D.C. Circuit Judge Brett Kavanaugh

As D.C. Circuit Judge Brett Kavanaugh begins his long road to potential confirmation to the U.S. Supreme Court, Senate Republicans and Democrats are setting the stage for a fierce and divisive contest going into the 2018 elections over crucial issues facing the High Court.

On Capitol Hill, Republicans praised Kavanaugh as the nominee met privately with Senate Majority Leader Mitch McConnell and Judiciary Committee Chair Chuck Grassley, who will manage Kavanaugh’s confirmation hearings. McConnell lauded Kavanaugh for “his brilliance, his talent, his temperament — all the things the American people would like to have in a judge.”

Minority Leader Senator Chuck Schumer of New York said Democrats plan to use Kavanaugh’s confirmation hearings to generate public opposition to Trump’s nominee on the basis of his position on a wide range of issues starting with abortion, health care protections, LGBTQ rights and gun control, as well as the Russia investigation.

“The ramifications of this battle will last a generation and more. I’m going to fight this nomination with everything I’ve got,” Schumer said in a press conference on July 10 on the steps of the Supreme Court, joined by Democrat leaders of the Senate Judiciary Committee. “The American people must join us and speak loudly, clearly, and now. We must defeat Judge Kavanaugh’s nomination to the bench.”

President Trump and White House spokesman Raj Shah said they expect Kavanaugh’s confirmation to be completed in 66 days, a benchmark drawn from previous Senate handling of nominations. Grassley said the Judiciary Committee would engage in a “thorough” process in which “we’ll try to do what we can to accommodate everybody's interest.”

Democrats have very limited procedural tools to block Trump’s nominee. Instead they plan a longshot campaign to generate sufficient pressure from voters that senators will reject Kavanaugh. Early indications are that it will be a very close vote with Republican advantage.

Success or failure of the Kavanaugh nomination likely rests with a few senators on both sides whose votes could swing the narrowly divided Senate. Republicans control the chamber 51 to 49 and the “filibuster” rule — which had required 60 votes to confirm a Supreme Court nominee in the past — no longer applies due to a rule change, meaning Kavanaugh’s nomination will be decided by simple majority.

Among the key potential swing votes for Kavanaugh are Democrats Joe Donnelly of Indiana, Joe Manchin of West Virginia, and Heidi Heitkamp of North Dakota. All three voted with Republicans to confirm Justice Neil Gorsuch and are running for reelection in states Trump won in 2016.

“We’ve got a great nominee who deserves bipartisan support. We got a few of ’em on Justice Gorsuch and I’m hopeful we’ll get a few of ’em on this nomination as well,” McConnell told reporters on Capitol Hill.

Donnelly, who holds pro-life views, has walked a carefully independent line on social issues throughout his political career. He voted in 2015 to defund Planned Parenthood and was one of three Democrat senators to vote with Senate Republicans on a symbolic anti-abortion measure earlier this year. Donnelly met with Trump at the White House on June 28 and discussed the president’s pending Supreme Court nomination.

Manchin, in a statement, cited health care as a decisive issue in his consideration of Kavanaugh. “The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their healthcare. This decision will directly impact almost 40 percent of my state, so I’m very interested in his position on protecting West Virginians with pre-existing conditions,” Manchin said.

Democrats hope to win over Republican Senators Lisa Murkowski of Alaska and Susan Collins of Maine who voted with Democrats last year to preserve the Affordable Care Act. Collins may prove difficult for Democrats to get, but Murkowski signaled potential openness to the criticism of Kavanaugh.

“Judge Kavanaugh has impressive credentials and extensive experience, having served more than a decade on the D.C. Circuit Court of Appeals,” Collins said in a statement. “I will conduct a careful, thorough vetting of the president’s nominee to the Supreme Court, as I have done with the five previous Supreme Court justices whom I have considered.”

Murkowski said in a statement: “I intend to review Judge Kavanaugh’s decisions on the bench and writings off the bench, and pay careful attention to his responses to questions posed by my colleagues on the Senate Judiciary Committee.” Murkowski said she would review the American Bar Association’s rating of Kavanaugh and weigh “the views of Alaskans in determining whether or not to support him.”

The political stakes in Kavanaugh’s nomination are high for both parties. Replacing the late Justice Antonin Scalia with Gorsuch was — in simple terms — a one-for-one swap of a conservative for a conservative. The retirement of Justice Anthony Kennedy, however, is different. Kennedy was a supporter of women’s rights and gay rights. Replacing Kennedy with Kavanaugh would shift the ideological balance on the Court, Democrats said.

“If Justice Kennedy was a swing vote to the center on the Supreme Court, Judge Kavanaugh would swing the Supreme Court to the far right,” Senator Dick Durbin of Illinois, the second-highest ranking Democrat in the Senate, tweeted on July 10.


William Roberts is a regular D.C. Bar contributor.