Activists Gird for Kavanaugh Redux, Next Court FightSeptember 5, 2019
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After the fierce partisan battle over Supreme Court Justice Brett Kavanaugh’s confirmation last fall, most Republicans and Democrats seemed eager to put it in their rearview mirror.
Despite the pitched fight over Christine Blasey Ford’s unverified, 36-year-old sexual assault allegations against the nominee, Republicans chalked up another win by filling their second high-court vacancy of the Trump administration.
Democrats, meanwhile, in large part accomplished the opposite of what they set out to do. Kavanaugh won his confirmation, and Democrats woke up the morning after Election Day 2018 to this USA Today headline: “Democratic Senators lost in battleground states after voting against Kavanaugh.”
So when liberal activists recently announced they would mobilize “reclaim the court” protests on Oct. 6, the anniversary of Kavanaugh’s confirmation, conservative strategists said they relished the thought.
“The Senate Democrats lost four incumbents in the last election based at least in part on the fight to confirm Justice Kavanaugh,” said Mike Davis, a former Republican Senate and White House aide who played a key role in the confirmations of Kavanaugh and Justice Neil Gorsuch.
Davis referred to the Kavanaugh-focused protests planned for next month as “pointless” and an example of Democrats “crying in their beer” over their failed attempt to keep the conservative nominee off the court.
In many ways, Democrats’ campaign to tarnish Kavanaugh and deny him a seat on the nation’s highest court backfired when it revved up Republican voters more than their own liberal base.
Even though Democrats retook the House majority, exit polling showed that the ugly confirmation process, which captured the nation’s attention last fall, likely played a role in the defeat of their candidates in several close races — not only in the Senate, but in tight governor’s races in Florida and Georgia as well.
Davis was referring to the Senate seats in Missouri, Indiana, North Dakota and Florida, where Claire McCaskill, Joe Donnelly, Heidi Heitkamp and Bill Nelson all went down in defeat after voting to reject Kavanaugh.
In North Dakota, ABC News reported that exit polls showed 47% of voters said Heitkamp’s vote against the nominee was a major factor in how they voted.
Weeks after her loss at the polls, McCaskill partly blamed her party’s handling of the confirmation and the “spectacle that occurred.”
“There were mistakes made by my party in terms of how that was handled,” she said, noting “a very real perception that this was an 11th-hour attempt to gut the guy.”
Other polling showed the approval rating of lawmakers who played prominent roles in the episode skyrocketing or plummeting, depending on their support or opposition.
Sen. Lindsey Graham, a South Carolina Republican who faces re-election in 2020, saw his net approval rise 15 points in the state following his fiery defense of Kavanaugh, according to a Morning Consult survey. Meanwhile, Sen. Lisa Murkowski, an Alaska Republican who opposed Kavanaugh’s confirmation on the Senate floor, saw her rating among GOP voters fall 18 points, from 42% to 24%.
Senate Majority Leader Mitch McConnell boosted his approval by 10 points after the court fight, from 38% of Kentucky voters approving his job performance to 48%.
Davis now runs the conservative Article III Project, which is named after the section of the Constitution that established the judiciary and was formed to counter liberal groups’ hardball tactics when it comes to judicial nominations.
“The Article III Project is eager for the left to re-litigate the Kavanaugh fight,” he told RealClearPolitics. “We will continue to support President Trump in his record-breaking success in transforming the judiciary, and we are gearing up for the next Supreme Court vacancy.”
Even though Justice Ruth Bader Ginsburg is reportedly on the mend after a recent health scare, both sides are preparing for an election-year battle over a potential vacancy -- what could be an unprecedented clash rivaling or even dwarfing the Kavanaugh confirmation.
Despite Senate Democrats’ 2018 election losses, some liberal judicial activists also want to revisit the Kavanaugh fight, calling it “unfinished business.”
On Oct. 6, the anniversary of his confirmation, the Women’s March, Demand Justice and the Center for Popular Democracy plan protests in Washington over the ascension of both Kavanaugh and Gorsuch, whom they view “as a direct threat to the constitutional right to abortion given their conservative records.”
“We protested Kavanaugh’s appointment to the Supreme Court last year because we knew that extremists would respond by pushing reckless anti-abortion laws. President Trump repeatedly promised on the campaign trail that Roe v. Wade would be overturned ‘automatically’ once he had his choice of justices on the Supreme Court,” Women’s March Chief Operating Officer Rachel Carmona told rewire.com. “We won’t be silent while the GOP subverts the will of the people by cheating our democracy processes. Women are organizing like our lives depend on it, because they do.”
Marking the anniversary of Kavanaugh’s confirmation is important because “we really think of it as unfinished business,” Katie O’Connor, senior counsel at Demand Justice, also told rewire.
Neither the Women’s March nor Demand Justice, a left-wing organization that promotes liberal judicial appointments and opposes Trump’s nominees, responded to RCP requests for comment.
Demand Justice is one of several nonprofits operating under the guidance of the liberal Washington-based Arabella Advisors, an inter-locking network of “dark money” groups that have hundreds of millions of dollars at their disposal and don’t have to disclose their deep-pocketed donors.
Prominent Democrats, such as Sen. Sheldon Whitehouse, have spent years railing against conservative dark money groups for what the Rhode Island lawmaker regards as their outsized, improper political influence. But Whitehouse and others on the left have recently conceded that it’s a problem on both sides.
The Article III Project, a dark money group on the right, was created largely in response to Demand Justice and other liberal judicial activist organizations.
The Judicial Crisis Network, a conservative dark money group that reportedly spent at least $10 million backing Kavanaugh, has pledged to plow even more into the next Supreme Court fight, whenever a vacancy arises.
But Carrie Severino, the group’s chief counsel and policy directly, isn’t sure whom liberal groups are trying to appeal to in reprising the Kavanaugh fight on the Oct. 6 anniversary.
“It depends on their target audience,” she told RCP. “Some of the screaming and insta-protests five minutes after he was nominated backfired in terms of appealing to swing voters, and we are continuing to see a disconnect and divide between the activists and the donor class and the [Democratic presidential] candidates, who do not want to talk about judges at all. That is an interesting contrast to me.”
RCP reached out to a dozen Democratic presidential campaigns in June, asking if they will disclose a list of potential Supreme Court and other judicial nominees if elected president. None of them would commit to doing so.
In 2016, then-candidate Donald Trump took the unusual step of pledging to choose his high court nominees from a list vetted by conservative activists.
Since then, only Amy Klobuchar has addressed the issue directly, saying she would release a full slate of qualified judges on the first day of her presidency, but not before.
Trump’s decision to release the names of his potential picks is credited, at least in part, with helping him win over conservative voters wary about how he would govern.
As the 2020 campaign shifts into high gear and the Democrats winnow their field, judicial appointments will become a greater priority for voters and a topic that Democratic candidates won’t be able to avoid, Severino predicts.
“It’s certainly something that President Trump talks about a lot. It will be interesting to watch as the campaign continues and we get down to a smaller number of [potential] nominees,” said Severino, who co-authored the book “Justice on Trial,” about Kavanaugh’s confirmation. “It played a very significant role in the last election and broke in favor of President Trump and his commitment to having constitutionalists serving on the courts.”
In recent weeks, Demand Justice also has pressed 2020 Democratic hopefuls to talk about the importance of judicial nominations on the campaign trail. The group has noted that the candidates did not once bring up the issue in five hours of debates in July.
“Our mission is to never repeat what happened in 2016 again,” Brian Fallon, the group’s spokesman -- who also served as the press secretary for Hillary Clinton’s presidential campaign -- told Time magazine. Fallon was referring to Trump’s decision to make Supreme Court nominations a major centerpiece of his campaign.
The liberal Alliance for Justice Action Campaign, which is putting together its own pool of judicial candidates that a Democratic president could pull nominations from, is also calling on the Democratic White House hopefuls to talk about the judiciary on the campaign trail.
“They clearly need to step up,” Nan Aron, AJC’s president, told Time. “Too often the Democrats have ceded to the right the federal courts, allowing them to energize their base. Judges make decisions that affect every aspect of our life, and by ignoring this topic, they do so at their peril because Americans do care.”
Aron’s group is preparing talking points on Trump’s judicial appointments and their records. The group is also working with People for the American Way’s campaign called Vote the Courts 2020, which is working to ensure that questions about the judiciary are raised in candidate town halls and to organize a candidate forum exclusively focused on the courts.
Demand Justice is so focused on raising the issue during the primary that it has “local organizers” in Iowa and New Hampshire asking candidates questions about judges -- and filming their responses, Time reported. The group is also urging the next Democratic president not to nominate former corporate lawyers to the bench, an expansion of the strong, anti-corporate theme dominating this year’s Democratic presidential primary.