Progressive groups are falling behind in the war over President Donald Trump’s Supreme Court nominee—and they’re barely trying to catch up.
Even as polls show Brett Kavanaugh heading into confirmation proceedings with the weakest public support since President George W. Bush’s false-start nominee Harriet Miers, the well-oiled progressive political machine promised in the hours after his nomination is still working out the kinks. Some liberal groups opposed to Kavanaugh’s confirmation are barely going through the motions, using resources to push untargeted Facebook ads and organize Handmaid’s Tale-themed vigils rather than preparing for an ideological battle that could shape the Supreme Court for a generation.
Demand Justice, a liberal dark money group founded in the aftermath of Merrick Garland’s doomed nomination to the Supreme Court under President Barack Obama, pledged to spend $5 million in a campaign-style ad blitz to convince vulnerable Democrats and persuadable Republicans to keep Kavanaugh off the nation’s highest court.
Of that, much of the money spent initially went to Facebook ads to non-battleground states—useful for raising awareness of Demand Justice’s work and getting eyeballs on its ads in the future—and expanding their email list, but less useful in targeting constituents of senators from Alabama, Alaska, Indiana, Maine, North Dakota, and West Virginia who could be instrumental in stopping Kavanaugh’s confirmation.
Demand Justice has, however, been running television and digital ads opposing Kavanaugh’s confirmation in five key markets: statewide in Alaska, Maine, North Dakota and West Virginia, and in the Indianapolis media market, which represents half the Hoosier State’s voting population.
Other organizations haven’t been so quick on the media mobilization front. When asked about mobilization efforts against Kavanaugh’s nomination, the Leadership Conference on Civil and Human Rights, a civil-rights umbrella organization with hundreds of affiliated organizations, directed The Daily Beast to a series of sundown vigils to be conducted on Wednesday. Of the more than 100 vigils scheduled—including a “Vigil Against the Beast, Donald Trump” in Indianapolis—only one appeared specific to President Trump’s Supreme Court nominee: a “Handmaids Against Kavanaugh” vigil in front of the Boston State House.
Ten people have RSVPd so far.
Not every group appears wholly unprepared for the Supreme Court fight: Indivisible, a progressive movement with its origins in the online #Resistance handbook Indivisible: A Practical Guide for Resisting the Trump Agenda, held 107 rallies at Senate offices around the country, with participants cresting more than 100 individuals in states like Maine, Alaska and New York.
“The week of action was the first part of a two-step strategy,” Indivisible press secretary Emily Phelps told The Daily Beast. “The second step is electoral. Beginning this past weekend, to channel progressive energy around this fight to where it can do the most good in the midterms, we’re setting up a giant national phone bank to support Democrats in five Senate races: Texas, Nevada, Arizona, Mississippi, and Tennessee. Volunteers from around the country have made more than 66,000 dials to voters in those five states as a part of this phone bank.”
But phone banking can only accomplish so much in the face of a massive fundraising and organizing effort by pro-Kavanaugh groups that see his confirmation as crucial to tilting the Court to the right.
The conservative Judicial Crisis Network has increased its media spending by nearly 50 percent less than a week after President Trump nominated Brett Kavanaugh to the U.S. Supreme Court, targeting vulnerable red-state Senate Democrats with cable and broadcast with a flurry of ads dubbing Trump’s nominee “the best of the best” and “a grand slam” for conservatives.
Other conservative outside groups are pledging even larger amounts to ensure Kavanaugh’s confirmation. The Great America PAC and Great America Alliance have pledged $5 million to fund a television, radio and digital push in seven Trump-won states where Democratic senators are fighting for reelection; the Koch-affiliated group Americans for Prosperity (AFP) has vowed millions in advertising spending in support of the effort as well, and has already dispatched door and phone scripts to each of its 36 state chapters.
AFP mail and door hangers are set to be deployed in nearly a dozen states with the next few weeks, ahead of AFP-hosted tele-town halls and Facebook live conversations with lawmakers about “the proper role of the courts and the importance of confirming jurists who interpret the law as written.”
Progressive groups are the first to admit that if the battle over Justice Anthony Kennedy’s seat were framed as a dollar-to-dollar fundraising competition, they would lose. At the conclusion of a press call held hours after Trump announced Kavanaugh’s nomination, progressive groups led by NARAL Pro-Choice America discussed their mobilization against Kavanaugh’s nomination in the most apocalyptic terms, while acknowledging that historically, conservative groups have the drop on judicial nominations. Brian Fallon, executive director of Demand Justice, admitted that the fundraising race between outside groups that oppose Kavanaugh’s nomination and those that support it had already been lost.
“‘Yeah, good luck,’” Fallon recounted Carrie Severino, Judicial Crisis Network, telling him after a cable news appearance following Kavanaugh’s nomination. “And she’s exactly right in saying that, because we’re never gonna match her dollar for dollar.”
On the call, Kavanaugh’s replacement of Kennedy was called “a five-alarm fire for our fundamental rights and our democracy,” “a disaster,” a “brash and in-your-face pick” with “a 100 percent batting average that’s anti-abortion”—all part of a doom-and-gloom approach to framing the Kavanaugh nomination as an existential crisis for progressive Americans.
“Our belief is that this fight is gonna be won on the ground, by mobilization,” Fallon elaborated.
Some on the left are hoping that once confirmation hearings for Kavanaugh begin and more Americans pay attention, those who support abortion access and the Affordable Care Act will make their feelings more clearly known, allowing for easier organization by the groups that seek to mobilize progressives—the liberal political version of the apocryphal quotation, “there go the people; I must follow them, for I am their leader.”
“According to the polling that I have seen, about 70 percent of the American people do not believe that Roe v. Wade should be overturned,” Sen. Bernie Sanders (I-VT.) told The Daily Beast. “About 90 percent of the American people do not think we should go back to the old days where insurance companies can discriminate against people with pre-existing conditions, et cetera, et cetera. And I think our job is to make it clear in states around this country that that is what is at stake—I think it’s going to be a tough fight, but if we can pry loose a couple of Republican votes, we have a shot to stop this nomination.”
That kind of thinking has helped shape some of Demand Justice’s early ads in Indiana, North Dakota and West Virginia, where Democratic Sens. Joe Donnelly, Heidi Heitkamp, and Joe Manchin, respectively, are all up for reelection—and are in no way guaranteed to vote against the Supreme Court nominee of a president who won their states in the 2016 presidential election.
“Thanks to Senator Donnelly, more than 2.7 million Hoosiers with pre-existing conditions still have access to affordable health care,” Demand Justice’s ad in Indiana says. “But those protections are at risk again, this time in the courts. Kavanaugh refused to uphold key patient protections in the past, and if he joins the court he could vote to end these protections for good.”
Progressive judicial activists have acknowledged that, after conservatives spent nearly $17 million helping Justice Neil Gorsuch reach the Supreme Court, they will likely be outspent again. But outspending, sources within NARAL told The Daily Beast, will not mean out-mobilizing—even if that mobilization isn’t yet evident.
But with a Republican Senate majority that, barring an explosive disqualification or shock defection, all but assures Kavanaugh’s confirmation, progressive groups might simply be saving their energy for the midterms—a battle that they might actually win.
— with additional reporting by Gideon Resnick