Senate Republicans are pledging a swift confirmation process that would put Supreme Court nominee Brett Kavanaugh on the bench before the new term opens Oct. 1 — and there is little Democrats can do to stop them.
That doesn’t mean Democrats won’t try. With congressional elections looming in November, they’re framing the fight over Kavanaugh as being about protecting civil rights and access to abortion and preventing the high court from tilting toward corporations over the public.
“I will oppose him with everything I’ve got,” Senate Democratic Leader Chuck Schumer of New York told CBS News on Tuesday morning.
Democrats would need to forge a united front against Kavanaugh and flip at least one and possibly two Republicans against him, a steep challenge in the face of the jurist’s positions that are solidly conservative. Schumer said his main points to peers will be that Kavanaugh wants to undo current law on abortion rights and health care.
Kavanaugh’s remarks Monday night at the White House, after Trump announced his nomination, seemed to anticipate lines of attack from Democrats. He spoke of his mother’s work as a teacher in predominantly African-American public schools in Washington, D.C., and his hiring of a diverse collection of law clerks, most of them women.
“I will tell each senator that I revere the Constitution. I believe that an independent judiciary is the crown jewel of our constitutional republic,” he said. “If confirmed by the Senate, I will keep an open mind in every case.”
Senate Majority Leader Mitch McConnell, who has worked closely with the White House to help reshape the federal courts, will have an enormous advantage as he works to help fill Trump’s second Supreme Court vacancy. At McConnell’s behest, the GOP-led Senate last year voted to end the use of filibusters to hold up high court confirmations. That change came just before the chamber voted 54-45 to confirm Trump’s nomination of Justice Neil Gorsuch.
Yet Republicans have a wafer-thin 51-49 majority, and with GOP Sen. John McCain away as he battles brain cancer, McConnell may not be able to lose a single Republican and get the simple majority he needs to confirm Kavanaugh to the high court.
Outside groups including NARAL Pro-Choice America and the American Civil Liberties Union already are running ads in the home states of two Republicans who support abortion rights — Susan Collins of Maine and Lisa Murkowski of Alaska — seeking to sway their votes against Trump’s nominee. Collins Monday night lauded Kavanaugh’s “impressive credentials” without giving a firm commitment of her vote.
Schumer and more than a half-dozen other Democrats announced their opposition to Kavanaugh moments after Trump’s announcement.
But Schumer may struggle keeping his party together. Three Democrats who voted for Gorsuch — Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Joe Manchin of West Virginia — are up for re-election in states Trump won handily in 2016, and their confirmation votes are in play. They and Democratic Sen. Doug Jones of Alabama are being targeted with ads from conservative groups in their home states, urging them to back the president.
With the potential for rulings by the court in coming years in cases affecting abortion rights, health care and regulation, the stakes are high for both sides.
Democrats began raising concerns about Kavanaugh, 53, a judge on the federal appeals court in Washington, shortly after Kennedy said on June 27 he would retire.
Kavanaugh was one of 25 judges on a list of possible choices that was compiled for Trump with help from the conservative Federalist Society and the Heritage Foundation. The former Kennedy law clerk has been at the center of legal and political controversies for most of his career, from his work with independent counsel Kenneth Starr that led to President Bill Clinton’s impeachment, to service in George W. Bush’s White House, to rulings on the bench.
His nomination to the circuit court by Bush was held up for three years by Democrats, who argued that he was too partisan. He was eventually confirmed in 2006 on a 57-36 vote.
Kavanaugh went to Yale College and Yale Law School. His confirmation would mean the Supreme Court would continue to have only Ivy League-educated justices.
Sunday night call
Trump made his decision on Sunday, according to White House officials, adding that the determining factor was that Kavanaugh was the kind of judge read by other judges, and had a solid grounding in the legal philosophy known as strict constructionism.
On Friday, the president asked all four finalists for the Supreme Court seat — Kavanaugh, Raymond Kethledge, Amy Coney Barrett, and Thomas Hardiman — to write speeches for Monday night’s announcement, submit names of people they’d like to have attend the announcement, and share background information, according to the White House officials, who asked for anonymity to discuss internal deliberations.
Two of the officials said the president would view Coney Barrett as a top contender if he has the opportunity to make a third Supreme Court nomination. They added that Trump repeatedly praised Hardiman, while Kethledge was ruled out because of decisions that immigration hardliners disliked.
The president called Kavanaugh on Sunday night to tell him that he had been chosen. On Monday, he told Kennedy, who was traveling in Austria, one of the officials said.
White House spokesman Raj Shah told CNN Tuesday that the finalists represented “an abundance of riches for the president” but that Kavanaugh “stood above the others because he has a lengthy record of interpreting the laws and constitution as they were written.”
On the bench, Kavanaugh has been a foe of government regulation, voting to strike down Environmental Protection Agency rules under President Barack Obama. He also once said he would have tossed out the Obama-era net neutrality rule that barred Internet service providers from slowing or blocking rivals’ content.
Although he hasn’t ruled directly on abortion rights, he sided with the Trump administration in a fight with an undocumented teenager seeking to end her pregnancy while in federal custody, saying in a dissenting opinion that he would have prevented the girl, who was 15 weeks pregnant, from having an abortion for another week.
Kavanaugh also once wrote a law review article arguing that sitting presidents shouldn’t have to respond to lawsuits or criminal probes. Democrats, including Richard Blumenthal of Connecticut, say that raises questions about how he would rule in cases involving Trump.
Gorsuch road map
As the confirmation process gets underway, the 2017 Gorsuch proceedings provide a road map for a White House eager to see its nominee installed in quick order.
The Gorsuch confirmation process took 66 days beginning when the then-Colorado appellate court judge was nominated by Trump on Jan. 31, 2017, until he was confirmed on April 7. There are 84 days between July 9 and the start of the next court term, although the Senate will be out of session at least one week in August.
In the Capitol, the first step will be a series of one-on-one meetings with senators so lawmakers can ask Kavanaugh about his judicial philosophy and background. The White House team that managed Gorsuch’s confirmation wasted no time, with the judge appearing at the office of Senate Majority Leader Mitch McConnell just one day after Trump named him.
A speedy start is likely again, although the individual meetings probably will take place until around the time the Senate Judiciary Committee convenes two or more days of confirmation hearings. The White House named former Arizona Sen. Jon Kyl as Kavanaugh’s so-called Sherpa to guide him through the process.
Senate Judiciary Chairman Chuck Grassley, an Iowa Republican, said he’ll schedule hearings for Trump’s nominee “in the coming weeks.” Gorsuch appeared before the panel seven weeks after his nomination.
On Gorsuch, the panel split 11-9 along party lines to advance the nomination to the full Senate. Early signs suggest that might be the case again this time. Most Democrats on the committee, including Dianne Feinstein of California and Dick Durbin of Illinois, already have said they have concerns about Kavanaugh.
Some senators followed tradition and said they would wait until after the hearings to announce how they’ll vote on the nominee. But some of the Democrats eyeing possible presidential runs in 2020 joined Schumer in announcing their opposition.
Sen. Kamala Harris of California announced her opposition within moments, calling Kavanaugh “an existential threat to the health care of hundreds of millions of Americans.” Massachusetts Sen. Elizabeth Warren told supporters in a fundraising email that Kavanaugh “was chosen because conservatives are confident that he would overturn Roe v. Wade.”
White House counsel Don McGahn, who oversaw Trump’s justice selection process, tried to contact all the Senate Judiciary Committee members during the search. Only Harris declined to engage, according to a White House official.
There could be a cliff-hanger effect, with swing-vote senators holding back until the vote count for the confirmation is clearer. Yes votes from Manchin, Donnelly and Heitkamp or other Democrats could free Collins or Murkowski to vote no. The Democrats will face less pressure if all the Republican votes are lined up.
Manchin and Donnelly both said they will carefully review Kavanaugh’s record.
“As I have said, part of my job as senator includes thoroughly considering judicial nominations, including to the Supreme Court,” Donnelly said in a statement. “I will take the same approach as I have previously for a Supreme Court vacancy. “