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 the assumption that Kavanaugh wants to undo current law on abortion rights and health care.
Kavanaugh began the first in a series of personal meeting with Senators Tuesday morning, starting with Majority Leader Mitch McConnell.
His voluminous document trail, from his time working on independent counsel Kenneth Starr’s team during the Clinton administration to his work in George W. Bush’s White House to his years on the federal bench, will be a source of ammunition for Democrats and a hurdle to quick work on a confirmation.
Senate Judiciary Chairman Chuck Grassley, an Iowa Republican, told reporters that Kavanaugh’s confirmation hearing won’t come before the chamber’s early August recess. The committee will need “a couple of months” to review the nominee’s numerous cases.
"These three hundred cases are a lot of cases to go through," Grassley said. "We are going to staff up and do it so we can have an intelligent discussion with him before he comes before the committee."
While Grassley said the paper trail from Kavanaugh’s role in the Bill Clinton impeachment proceedings “could” slow things down a bit, he said he still thinks Kavanaugh will get a vote before the midterm congressional elections in November.
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.”
McConnell, a Kentucky Republican 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.
On the Senate floor Tuesday morning, McConnell criticized those Democrats who registered their opposition to Kavanaugh immediately after he was named as the nominee. He called it “fill-in-the-blank opposition” and said that he anticipates plenty of attacks on the nominee pulled from a “partisan playbook” used against GOP Supreme Court nominees for decades.
Yet Republicans have a wafer-thin 51-49 majority, and with GOP Senator 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. All 10 Democrats on the Judiciary Committee that will hear the confirmation joined Schumer on the steps of the Supreme Court this morning to highlight their concerns about a potential rightward tilt to the court.
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 Senator 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 Justice Anthony 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.
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.
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.
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.
Senator 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 Senator Elizabeth Warren told supporters in a fundraising email that Kavanaugh "was chosen because conservatives are confident that he would overturn Roe v. Wade."
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. ”
McConnell said that Democrats must accept that they are in no position to demand to know Kavanaugh’s views on how he might rule on particular cases. “We are evaluating a judge, not a candidate for political office,” he said.