When the last U.S. Supreme Court seat opened up, Democrats held out hope that they could stop President Donald Trump’s nominee and force the GOP to compromise.
“If we can successfully block this nomination,” said Democratic Minority Leader Chuck Schumer (D-NY) upon Brett Kavanaugh’s selection in 2018, “it could lead to a more independent, moderate selection that both parties could support.”
That, of course, did not happen. Two years later, any shred of hope that Democrats might have to block another Trump pick to the high court has been completely crushed.
Few on either side doubt that Judge Amy Coney Barrett has enough votes in Majority Leader Mitch McConnell’s (R-KY) Senate to fill the seat left by the late Justice Ruth Bader Ginsburg, who died less than two weeks ago. Aside from dissenters like Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), the GOP has enthusiastically gotten behind the obvious opportunity to tilt the balance of the high court in a conservative direction for years to come, despite their 2016 insistence that voters should have a say in how vacancies are filled.
“We can slow it down perhaps a matter of hours, maybe days at the most,” said Sen. Dick Durbin (D-IL), the No. 2 Senate Democrat, on ABC’s This Week on Sunday. “But we can't stop the outcome.”
The battle lines of Barrett’s confirmation, then, are forming not around whether she’s actually confirmed—but instead over which party will pay the biggest political price in November for their moves now, as the Senate barrels toward a vote before Election Day.
Tellingly, Schumer’s public statement on Barrett’s nomination was devoid of any hopes for Trump to reconsider. It was instead framed around what Democrats believe to be their biggest political weapon in this fight: the Nov. 10 case before the high court that could strike down the Affordable Care Act, and the possibility that Barrett could be a decisive vote to overturn it.
“The American people should make no mistake,” said Schumer. “A vote by any senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions.”
What is at stake for Democrats is the Senate majority, which is within reach as several GOP incumbents trail their Democratic challengers in the polls. The party recaptured the U.S. House in 2018 by centering GOP attempts to repeal the health care law, and they believe they can replicate that playbook for the Senate and the presidential race. The fact that Barrett was the only jurist on Trump’s shortlist to be on record criticizing past decisions to uphold the ACA only makes Democrats’ job easier, many believe.
Obamacare, once the central target of the GOP’s political messaging, is more popular than it has ever been since it became law a decade ago. A July poll from the Kaiser Family Foundation found that 57 percent of voters opposed the current case before the court to overturn the ACA. A majority of voters, and a majority of independent voters, support keeping the law. Recent polling has consistently found that voters trust Democrats more than Republicans to handle health care issues; a recent KFF poll gave Democratic presidential nominee Joe Biden a 7- to 9-point lead over Trump on health care issues.
In typical fashion, Trump attempted to take a sledgehammer to Democratic messaging via Twitter. “Obamacare will be replaced with a MUCH better, and FAR cheaper, alternative if it is terminated in the Supreme Court,” tweeted Trump on Sunday, even though he and his party repeatedly failed to implement such a plan even with unified control of government. “Would be a big WIN for the USA!”
Trump has repeatedly promised to unveil a plan to replace Obamacare—as recently as a few weeks ago—but none has emerged. The White House has sought to attack the problem through Trump’s pen; the president signed a largely toothless executive order last week, which he claimed would protect people with pre-existing health conditions.
Most Republicans understand the weakness, even if the president seemingly does not. Last week, no GOP senator asked by The Daily Beast said it was a priority for them to see a Trump name a nominee who would be poised to strike down the ACA. Many have, to this point, acknowledged that most, if not all, of the sweeping health care law is here to stay.
“We do risk that once—say it’s due to constitutional reasons, and she’s part of it—it’s declared unconstitutional, we better be ready to go with a clear, effective plan,” Sen. Mike Braun (R-IN), told The Daily Beast of Barrett’s nomination. “Or else we’ll pay the price politically.”
Broadly, Democrats see their base mobilizing thanks to the enormous stakes of Barrett’s confirmation, which could help usher in rulings that liberals believe would be disastrous, not only on health care but on voting rights, abortion, and other issues central to their coalition. If fundraising numbers are any indication, that mobilization has been swift and massive: in the 28 hours after Ginsburg’s death, the Democratic fundraising platform ActBlue reported processing $91 million in donations to candidates.
But in the short term, Republicans see the high court fight as a powerful way to motivate their base ahead of a key election, and at a time where many conservatives increasingly perceive Chief Justice John Roberts as a disappointment who ushered in liberal rulings on immigration, religious rights, and gay rights.
Braun said he was very encouraged by Barrett’s record and cast her as a course-correction for Roberts—someone who’d be in the mold of Antonin Scalia, the late archconservative justice revered on the right. “You could count on them at least not drifting in a way that surprises you,” said Braun.
A confirmation fight that emphasizes the issues conservatives most care about has political upside for the GOP. Republicans feel good, for example, that Sen. Lindsey Graham (R-SC)—the Senate Judiciary Committee chairman who is being badly outraised by Democratic challenger Jaime Harrison—will benefit, as could other vulnerable Senate Republicans running in states Trump is set to win.
And many Republicans believe the last court battle, which happened on the eve of the 2018 midterm election, sealed defeat for several Democratic incumbents and expanded the GOP’s Senate majority. But if that year’s explosive debate—sparked by the allegations of sexual assault against Kavanaugh—gave the GOP a rallying cry for a culture war campaign, that possibility is less clear this time around.
That’s not for lack of trying by Republicans, however. Even before Barrett was officially named as the nominee, conservatives quickly sought to claim that she would become the victim of a sustained anti-Catholic smear campaign. That prediction leans heavily on Barrett’s first confirmation hearing to the federal bench in 2017, during which Sen. Dianne Feinstein (D-CA) questioned the devout Catholic and Notre Dame professor over her faith. “The dogma lives loudly within you,” said Feinstein, inadvertently giving birth to a popular slogan among conservatives.
Last week, the conservative radio host Hugh Hewitt asked every one of the numerous GOP senators he interviewed what they would do to combat return of anti-Catholic bias, which Hewitt presented as an inevitability. A press release sent out by McConnell’s office on Saturday asked, “will Democrats continue to attack Judge Barrett’s religion?” and listed Feinstein’s comments in 2017 along with two other Democrats who raised her religious beliefs.
Democrats view these efforts quizzically, saying the GOP is aiming to create a fight that they were planning to avoid anyway. “They don’t want to talk about the record unemployment, their failed response to the pandemic, or the protests across the country against systemic racism,” a Democratic aide told The Daily Beast. “This is all they have.”
But it’s not as if Democrats are clear of pitfalls as they work to make the court fight into an anchor that will sink the GOP in November. They face immense pressure from the party’s liberal base to go to extraordinary lengths to resist Barrett’s confirmation, both because of the fight’s immense stakes on the balance of the court and because of the lengths the GOP went to block President Barack Obama’s nomination of Judge Merrick Garland in 2016.
McConnell and the GOP did not consider Garland on the basis that the voters should choose in the November election who would get to fill the seat left by Scalia, who died in February 2016. At the time, Republicans such as Graham defended themselves by saying they’d surely argue the same if a vacancy opened up at the end of Trump’s first term. Now that has happened, of course, nearly all Republicans are saying differently, with only a few hewing to their old standard.
Livid Democrats have responded by saying the flip-flop means Republicans have invited total war and ruthless tactics. Progressives have encouraged lawmakers to back up that rhetoric by using every procedural tool in the book to gum up Barrett’s confirmation, to refuse meeting with her and to even not show up to her hearings at all, which are scheduled for the week of Oct. 12. Some Democratic members of the Senate Judiciary Committee, such as Sen. Cory Booker (D-NJ), have agreed to meet with Barrett as she does the customary rounds of private meetings with lawmakers, though Schumer has said he’ll refuse.
Booker told NBC’s Chuck Todd on Sunday that he wanted to ask Barrett if she would recuse herself from any potential high court case involving the 2020 presidential election, which is set to be rife with legal challenges over the results. Republicans, like Braun, have said that Barrett should be confirmed in time to hear any such cases to prevent a deadlocked court of eight—though Barrett would be a decisive fifth or additional sixth vote with a conservative majority.
On that issue, it is hard for Democrats to avoid the implications of the seeming inevitability of Barrett’s elevation to the high court. “My broader hope,” said the famously optimistic Booker, “is that the Republican Party realizes they are undermining their legitimacy, the legitimacy of the Supreme Court, and they stop what they're doing and wait until the American public has spoken in this election.”