The long-shot path to killing Brett Kavanaugh’s Supreme Court nomination runs through the heart of the American health care system — and right into the November midterm elections.
Senate Democrats prepping for this week’s marathon confirmation hearings are zeroing in on the health care views of the man who could pull the nation’s high court to the right for a generation — and determine the fate of abortion rights, the social safety net and Obamacare itself, possibly within months.
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Their goal: to box Kavanaugh into committing to preserve those health care pillars. Or, failing that, to get the 53-year-old appellate court justice to validate Democrats’ fear he’d vote to wipe them out — a reveal they hope would prompt a wave of public outcry and the additional two Senate votes needed to sink President Donald Trump’s nominee.
“If Americans really knew what he intends to do to our republic, perhaps many more Americans would be speaking out against his nomination,” said Sen. Cory Booker (D-N.J.), one of the Judiciary Committee Democrats who will grill Kavanaugh at the hearings, which start Tuesday.
But even if that doesn’t happen — and Democrats privately know they aren’t likely to stop Kavanaugh — Democrats plan to use the confirmation battle to mobilize their base around threats to health care coverage and reproductive rights to build a blue wave for November.
In a bit of fortuitous split-screen timing, a court in Texas will be hearing its first oral arguments in yet another a case aimed at toppling Obamacare — and the popular protections for people with pre-existing conditions — the same day that Kavanaugh testifies.
Supreme Court nominees are usually adept at not letting themselves be pinned down on the specifics of how they might rule on a future case . But Democrats say they will call Kavanaugh out, citing his voluminous written record from his years on the bench and in government.
Senate Minority Leader Chuck Schumer, who before he became the Democratic leader went through other Supreme Court hearings as a Judiciary Committee member, said the conservative judge at a preconfirmation meeting “did not give me any reassurance” that he would protect abortion rights.
But at the upcoming hearings, Schumer said, Kavanaugh would have to be more direct. Democrats will ask him, for instance, if he believes the 1973 Roe v. Wade abortion case was correctly decided.
“That’s the key question,” Schumer added.
Democrats are likely to quiz him on other specific health-related issues that are wending their way through lower courts — Obamacare pre-existing condition protections, state laws that would ban specific abortion procedures, new work requirements conservative states are imposing on Medicaid recipients.
And Democrats believe the hearings will reverberate — another platform for the message they want to personalize, in particular, for women and minorities key to capturing the House and possibly even the Senate in November.
“I’m someone who obviously has quite a lot of pre-existing conditions, but I’m also a woman of color,” said Sen. Tammy Duckworth (D-Ill.), an Iraq War veteran who lost both her legs in combat. “It makes me exactly the kind of person whose health care — whose health — would be on the line if Judge Kavanaugh is confirmed.” She isn’t on the Judiciary Committee, but she’ll make her opposition clear when the nomination reaches the Senate floor.
The math and history both favor Kavanaugh. The Senate has rejected only 12 Supreme Court nominees in U.S. history. To do it for a 13th time, Democrats need to unite their entire caucus against Kavanaugh — including a few of the red-state senators in tough reelection fights — and flip at least two Republicans on top of that.
Kavanaugh has no glaring holes in his polished resume. He boasts a well-funded advocacy campaign and has vows of support from most Republicans in Congress. Vulnerable Democrats up for reelection in states that Trump carried are also facing pressure to back Kavanaugh, just as they did last year with Justice Neil Gorsuch.
Yet Senate Democrats and those working against Kavanaugh’s nomination say there’s still a remote chance of blocking his ascent — one that relies heavily on exploiting Kavanaugh’s writings relevant to major cases like Roe v. Wadeand Texas’ challenge to the Affordable Care Act, as well as lesser-known health care disputes they maintain could offer a troubling window in his judicial mindset.
That means focusing on how Kavanaugh could upend Americans’ access to health care by gutting laws like Obamacare and, perhaps even more consequential politically, the legal right to an abortion. Where conservatives in Congress have failed, conservatives on the bench may succeed.
“Women in this country should care very, very much about what’s going to happen to their health care,” said Sen. Mazie Hirono (D-Hawaii), who also serves on Judiciary.
Abortion may also hold the key to the votes of centrist Republicans and staunch abortion rights defenders Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska). Neither has yet indicated how they’ll vote, though Collins has on multiple occasions raised Kavanaugh’s qualifications and noted that he has tied himself to Chief Justice John Roberts’ view of Roe as a “settled” precedent.
That line — which emerged from a meeting with Collins — was a red flag for abortion rights advocates, given Roberts’ role in upholding a ban on so-called partial-birth abortions and his dissent in a 2016 case striking down abortion services restrictions.
Settled law is “settled” for the lower courts — but the Supreme Court can “unsettle” it in a future case. And even if the court doesn’t overturn Roe, activists note Kavanaugh could form part of a new conservative majority on the Roberts court that erodes access to abortion in rulings on a slew of other reproductive rights cases moving through the lower courts.
“We’re going to hear some pretty aggressive pushback against the idea that he can get away with code words like ‘settled law,’” said Ilyse Hogue, president of NARAL Pro-Choice America.
Democrats aim to turn Kavanaugh’s words against him when it comes to Obamacare, too. In the Texas case, 20 conservative state attorneys general argue that by gutting the health law’s individual mandate penalty, congressional Republicans rendered the whole health law unconstitutional. That particular application of the severability argument — when one part of a law is struck, another one has to go, too — has drawn ridicule from legal scholars on both sides of the aisle, particularly as Congress left the rest of the law intact, despite months of trying to repeal it.
Kavanaugh has expressed skepticism of such a broad interpretation of severability as well. But he’s also suggested presidents could effectively ignore laws they believe are unconstitutional — a remark tucked into the footnote of a 2011 Obamacare case he ruled on that’s raised alarms for the unchecked power it could grant Trump.
“The question is whether Kavanaugh believes that a sitting president or his administration can be held accountable for his actions,” said Abbe Gluck, a Yale Law School professor with expertise in health law. “That doesn’t impact just the Affordable Care Act … it affects everything.”
Citing precedent, Senate Republicans have already signaled they’ll push back against attempts to tease out Kavanaugh’s views on active cases.
“How are you going to know what a case is 10 years from now?” Judiciary Chairman Chuck Grassley (R-Iowa) said. “There isn’t going to be a black-and-white answer to anything.”
But Democrats insist they won’t back down, especially after what they contend has been years of ruthless norm-breaking by Republicans — most notably the 2016 blockade of former President Barack Obama’s court nominee Merrick Garland.
“This is one of the most important acts a senator performs,” said Sen. Kamala Harris (D-Calif.), a former prosecutor and potential 2020 presidential contender. “It has a profound impact on the lives of Americans, and I’m of the strong belief that anything and everything we can do to make sure that the American public knows who this person is must be done.”