Democrats are grasping for a Supreme Court strategy.
A day after Justice Anthony Kennedy’s retirement announcement, alarmed liberal activists are demanding the hardest possible fight against Donald Trump’s next Supreme Court nominee. But moderate Democrats are in no rush to stake out any firm position until the president taps a nominee, and the caucus’ next steps remain murky.
A handful of red-state Democratic senators began talking privately on Thursday about carving their own path on the confirmation. Other top Democrats are already shifting away from their initial demand to delay a confirmation vote until after the midterm elections and toward a push highlighting the record of Trump’s still-unnamed pick on abortion, health care and more.
Senate Democrats want the Supreme Court battle waged on the policy stakes, not the procedural tactics at play. But the party’s outraged base is prodding them to do everything they can to slow down Trump’s nominee, despite their paltry procedural options after the GOP quashed the filibuster for Supreme Court nominations last year.
The caucus has yet to settle on how or whether to grind the Senate to a halt. But with moderates getting pressure from the right and presidential hopefuls eager to play to the left, Democrats are already feeling the squeeze ahead of a fight that could hold the Supreme Court and the Senate in the balance.
“As far as possible, I don’t know how you define that,” Sen. Kamala Harris (D-Calif.) told reporters when asked how far she’d go to stop Trump’s nominee.
Presented with one example — boycotting confirmation hearings — Harris said only that “we’ll see.”
Harris, alongside Sens. Kirsten Gillibrand of New York, Elizabeth Warren of Massachusetts and Cory Booker of New Jersey, joined a Thursday rally on the Supreme Court steps to encourage the party’s base to keep mobilizing, despite their long odds of stopping Trump from a confirmation that could reshape the court for decades.
The message sent by that quartet of potential 2020 White House contenders: Dig in for a fight. But Democrats could alienate their vulnerable red-state incumbents by throwing procedural bombs designed to drag out a potentially unstoppable confirmation.
Sen. Joe Manchin (D-W.Va.), one of three moderates who voted to confirm Justice Neil Gorsuch last year, told reporters Thursday that “I thought how [Supreme Court confirmations have] been handled previously, with no decorum and no civility, was wrong.”
That apparent reference to the GOP blockade of Obama-era nominee Merrick Garland also serves as a subtle reminder that Manchin and other red-state Democrats would want no part of such a hardball strategy against Trump’s future nominee.
Progressive senators are just as committed to raising hell once they see whom the president selects. Senate Minority Leader Chuck Schumer (D-N.Y.) laid down a firm marker early for his caucus, urging the rejection of any nominee “who would overturn Roe v. Wade or undermine key health care protections” in a speech soon after Kennedy’s announcement.
“My sense is that there’s not much actual power in the minority to stop this, but if he puts up a radical, anti-choice, anti-collective bargaining, anti-worker nominee, we’re going to have to use whatever mechanism we have to up the volume level,” Sen. Chris Murphy (D-Conn.) said in an interview.
Murphy added that he has yet to delve into all the tools Democrats might have to determine if there’s “any actual way to slow down or stop a bad nominee,” but that if Trump names a particularly objectionable court pick, the party will deploy whatever it can.
Booker on Thursday called for delaying consideration of any nominee until after special counsel Robert Mueller finishes his investigation into Russian interference in the 2016 election and potential collusion between the Kremlin and the Trump campaign. The New Jersey Democrat argued the Supreme Court might ultimately weigh in on the probe, and so any Trump pick would have a conflict of interest.
Broadly speaking, however, Democrats are putting aside their insistence that any confirmation wait until after November, as they’re under no illusions about the willingness of Majority Leader Mitch McConnell (R-Ky.) to hear them out.
Brian Fallon, a former Schumer adviser who founded the group Demand Justice to battle Trump’s judicial nominees, said in an interview that “inevitably” the GOP would move ahead with the confirmation.
He added that Democrats have some options on how to wage a symbolic protest when that happens, including boycotting the hearings. “I think it’d be great if they do it,” he said.
“But if they don’t,” Fallon added, “we’re going to have to be ready to argue the nominee on the merits.”
The first policy arguments that Schumer listed in his Wednesday speech, on Roeand health care, are likely to take center stage.
Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska are seen askey swing votes depending on the Trump nominee’s abortion rights record. And the Trump administration has joined a request that a federal court unravel central elements of Obamacare, a case that’s poised to reach the Fifth Circuit Court of Appeals and potentially the Supreme Court. Collins and Murkowski also helped kill the GOP’s Obamacare repeal bill last year.
Manchin joined Indiana Sen. Joe Donnelly and North Dakota Sen. Heidi Heitkamp, who also voted for Gorsuch, at the White House late Thursday for meetings with Trump, as did Collins and Murkowski. Donnelly and Heitkamp said in a statement that the Supreme Court was one of the topics discussed.
Pressing Trump’s pick on the merits, without using base-pleasing delaying tactics, could help Democrats court potential swing-vote Republicans such as Collins, Murkowski and Sen. Jeff Flake of Arizona. But the minority also has to please its intensely energized left flank, especially in the run-up to the midterms.
“What the progressive base is looking for is people to fight really hard,” Center for American Progress President Neera Tanden said in an interview after Thursday’s rally. “Whatever mechanisms those are is important. I think it’s important to demonstrate that this isn’t just something normal to proceed [on].”
Senators in both parties are gearing up for an epic clash on both sides. “On the outside, there’s going to be World War III,” Senate Majority Whip John Cornyn (R-Texas) told reporters.
Some Democrats say they’re ready to meet the challenge.
The party’s grass roots “understand we’re in the minority, and tools are limited,” Sen. Richard Blumenthal (D-Conn.) said in an interview. “But I genuinely welcome the high bar they are setting, because it will make us as passionate and energetic as the advocates are. And they have a right to be energetic and passionate, because so much is at stake.”
But moderate Alabama Sen. Doug Jones, whose upset victory in December electrified fellow Democrats, was tight-lipped as he contemplated his first Supreme Court fight.
Asked about what kind of nominee he wants, Jones would say only, “I hope to have someone who is qualified.”
When reporters asked what the nomination will mean for abortion rights, Jones didn’t comment.
The Judiciary Committee’s top Democrat, California Sen. Dianne Feinstein, also preached caution as she declined to say whether she would embrace any delaying tactics.
“People just have to take it day by day right now,” Feinstein told reporters. “The procedure is the procedure — it’s the same procedure for everybody.”
But, she added, among the judicial confirmations she’s been involved in throughout her 25-year Senate career, “I rank this as the most important. … Largely because of the state of the country, and the divisions that have been driven into this.”