Senate Minority Leader Chuck Schumer’s strategy to defeat the Supreme Court nominee that President Donald Trump plans to announce Monday night takes dead aim at flipping two Republican senators to vote against confirmation.
Schumer and allies in liberal outside groups say they will try to persuade Sen. Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska) to reject Trump’s choice based on the same concerns that led them to vote against a repeal of the Affordable Care Act last year, and to prevent the court from scrapping the Roe v. Wade decision that legalized abortion.
“If we can convince them that this new nominee will repeal Roe and repeal health care, particularly pre-existing conditions, we will win this fight,” Schumer said in a call last Monday with alarmed and angry liberal activists in the group Indivisible Nation BK in Brooklyn.
Republicans likely will have only 50 votes for Trump's nominee if Sen. John McCain (R-Ariz.) remains home fighting brain cancer — just one more than the 49 votes in the Democratic caucus. The Senate is expected to vote on confirmation just weeks before the Nov. 6 elections.
By focusing on health care and attempts to scrap the ban on denying insurance based on pre-existing conditions, the Schumer strategy aims to give his 26 caucus members up for re-election — and especially the 10 in Trump-supporting states — a voter-friendly issue they can cite both for their Supreme Court vote and on the campaign trail.
That approach has some doubters on both the right and the left.
Tom Jipping, a former aide to Sen. Orrin Hatch (R-Utah) and a longtime conservative activist now at the Heritage Foundation, noted that Collins and Murkowski have not voted against any of Trump’s judicial nominees, including those who oppose abortion.
And, he said, three Democrats facing election in Trump-backing states voted last year for Supreme Court Justice Neil Gorsuch, Trump’s choice to fill a court vacancy McConnell held open for a year.
Meanwhile, liberal activists pressed Schumer to become ruthless in his battles against Republicans. “We are in a gun fight and we have a butter knife,” one activist complained at the Brooklyn event.
Schumer told them he developed the strategy with 40 progressive groups as the best hope to block Senate approval of a fifth reliable conservative vote that could result in the overturn of Roe and reversals on rights for minorities, workers, women and the LGBTQ community.
Nan Aron, executive director of the liberal Alliance for Justice that fights against conservative judicial nominations, said a poll conducted to get ready for the high-court fight found that of all the issues tested, health care was the most important.
And winning the fight, Schumer explained, means Trump would have to pick a less conservative nominee to replace retiring Justice Anthony Kennedy.
That strategy is similar to the plan Democrats and liberal groups carried out three decades ago that built a bipartisan majority to reject conservative Judge Robert Bork. That led President Ronald Reagan to pick Kennedy, a swing vote like the justice he replaced, Lewis Powell.
Unlike then, Senate Democrats are in the minority and no longer can filibuster to force a confirmation with a bipartisan 60 votes. “There is no procedural method to block the nominee,” Schumer said.
And unlike in the days in the 1950s, when then Senate Majority Leader Lyndon Baines Johnson could arm-twist fellow Democrats into line, Schumer only has the power of persuasion, said government professor James Thurber at American University in Washington, D.C.
Brian Fallon, executive director of the progressive group Demand Justice, said the nonprofit will run digital ads in Indiana, North Dakota and West Virginia to urge voters to tell their Democratic senators who voted for Gorsuch to oppose Trump’s next nominee.
“It’s important that we get our Democrats united as quickly as possible,” Fallon said.
But Demand Justice also is already running digital ads in Maine and Alaska urging voters to press Collins and Murkowski to vote to protect health care, he said.
As Schumer warned activists last Monday: “If we don’t get a Republican, or hopefully two Republicans, we are not going to win no matter what happens on the Democratic side.”