Democrats in the Senate are walking a tightrope, balancing pressure on threatened red state incumbents to support President Trump’s forthcoming Supreme Court nominee with the aggressive opposition of the party’s liberal base.
Top progressive groups on Thursday announced zero tolerance for Democrats who back any of Trump’s likely picks to succeed retiring Supreme Court Justice Anthony Kennedy. Grassroots action is planned in all 50 states, with advertising purchased in three red states where Trump is popular but that are represented by three of the most vulnerable Democrats on the 2018 ballot.
The so-called “personal liberty standard” that Democratic Party-aligned groups are demanding to green-light confirmation is, essentially, a promise from the nominee to preserve abortion rights and Obamacare in constitutional challenges that reach the high court. There is no way a conservative jurist could meet that test, and finalists on Trump’s shortlist are federal judges with a history of rendering conservative decisions.
“Because of President Trump’s litmus test, this nominee will face a higher burden than any past nominee,” Brian Fallon, executive director of Demand Justice, said in a statement. “He or she already starts off having three strikes against them because of positions Trump has already ascribed to them. Therefore, this nominee won’t have the luxury of trying to skate through these hearings without answering questions.”
Demand Justice is coordinating to derail Trump’s nominee to the Supreme Court, to be formally unveiled Monday, with influential progressive groups like Planned Parenthood, NARAL, National Women’s Law Center, and National Asian Pacific Women’s Forum. The president has narrowed his choices to federal appellate court judges Brett Kavanaugh, Raymond Kethledge, and Amy Coney Barrett.
The Republicans are clinging to a 51-49 Senate majority.
But the map of seats contested in the midterm elections favors the GOP, reassuring Republicans that they might pick up seats even in difficult political environment shaping up as a backlash against Trump. The Democrats are defending seats in 10 states won by Trump in 2016. In about half of those states, Trump’s approval ratings are above 50 percent.
That creates a real dilemma for these Democrats:
Side with the majority of their voters, who supported Trump over Democrat Hillary Clinton and are expected to approve of his Supreme Court nominee; or satisfy liberal activist and donors who fear a bench dominated by conservative justices and want Democrats to do everything in their power to block his or her confirmation.
Republican strategists claim that even a vote to confirm Trump’s pick might be insufficient for vulnerable red state Democrats to save themselves in November. “Supporting the nominee can’t completely wash away the extremism voters will hear from other Democrats who attempt to justify their reflexive opposition,” a GOP strategist said.
Brad Todd, an adviser to Missouri Attorney General Josh Hawley, the Republican challenging Sen. Claire McCaskill, described Kennedy’s unexpected retirement announcement, and the planned fall vote to confirm his replacement, as the end of the Democratic incumbent’s career, despite most recent polls showing her in the lead.
Last year, McCaskill voted against the confirmation of Justice Neil Gorsuch, a conservative and the president’s first Supreme Court nominee.
Given Trump’s popularity in Missouri and the timing of the next high court confirmation vote — so close to the midterm elections — Republicans argue that she can’t survive opposing Trump’s next pick, especially given her record of opposing most of the president’s nominees overall and key items on his agenda.
“When this election is over Claire McCaskill will look back at June as the month when [now-former governor Eric] Greitens resigned and Kennedy retired and an entire strategic framework melted in front of her,” Todd, a GOP strategist, said.
This will be Trump’s second opportunity to install a justice on the Supreme Court, although it is only the first vacancy of his presidency. Gorsuch was appointed to fill a void created in February 2016 when conservative Justice Antonin Scalia died. Senate Majority Leader Mitch McConnell, R-Ky., refused to consider President Barack Obama’s nominee, Merrick Garland, insisting voters should determine who fills vacancies that occur in presidential election years.
Democrats are smarting from this, and are doubly frustrated because Kennedy has been a swing vote on an ideologically divided Supreme Court, and fear Trump’s second appointment will tilt the bench decidedly to the right. They say Roe v. Wade, the decision that mandated abortion rights across the country, could be overturned, and that the remaining elements of the Affordable Care Act could be eliminated.
Democrats in the Senate are just short of the numbers they need to filibuster Trump’s nominee.
But liberal activists hope that by convincing red state Democratic incumbents to hold fast, and pressuring a few Republicans to jump ship, they might block the appointment. Whether this effort succeeds or not, some Democrats downplay the possibility of infighting, asserting that most activists and donors value the re-election of red state incumbents and know the dangers a civil war poses to the party’s prospects in the fall.
“This has been a big topic of conversation,” said Robert Zimmerman, a Democratic operative and Democratic National Committee member from New York. “I don’t see grassroots activists or donors walking away from these individuals; they know how important their races are.”
Some political observers believe, counter-intuitively, that the vacant Supreme Court seat, as an issue, could work for some red state Democrats.
Sen. Joe Manchin, D-W.Va., has been an early target of the liberals hoping to keep the red state incumbents from straying. Demand Justice, the group planning ads, hits the airwaves in West Virginia next week. A Republican operative in the state predicted the campaign would fall on deaf ears, and that Manchin would eventually back Trump’s pick.
But this Republican said Manchin would probably stretch out his decision until just before the fall vote, to keep Trump from criticizing him too heavily as he spends the next four months fending off a stiff challenge from Republican Patrick Morrisey, the West Virginia attorney general.
In a state where Manchin can win if he captures 15 percent of the Republican vote and half of the votes of Democrats and independents, respectively, the strategy just might work.
“The timing couldn’t be better for Manchin,” this Republican said.
