Instead, in sync with Joe Biden’s presidential campaign, Democrats want to replicate their successful 2017 fight to preserve the Affordable Care Act, which peeled off enough GOP senators to defeat Trump’s bid to repeal the health law. They remain skeptical of defeating this particular nominee, expected to be Judge Amy Coney Barrett, but Democrats believe this policy-focused message could propel them to big wins in the November elections.
“We will use whatever tools we have, but at the same time, to me, one of the biggest tools we have is our voices and letting the American people know what’s at stake,” Sen. Mazie Hirono (D-Hawaii), a member of the Judiciary Committee that will consider the nomination, told reporters this week.
The ideological distance between Ginsburg and Barrett is the biggest gap since 1991, when Thurgood Marshall, the civil rights lawyer and historic first Black justice, was replaced by Clarence Thomas, a justice who has spent almost three decades at the far right end of the court.
Other recent nominations, such as Justice Neil M. Gorsuch replacing the late Antonin Scalia, a hero to conservatives, represented marginal shifts. Even the first nominee to succeed Scalia, Judge Merrick Garland, was a centrist for whom some Republicans voiced admiration.
Now, with Barrett, a favorite of social conservatives, Republicans could have their fifth vote to overturn the ACA, strictly curtail abortion rights and possibly reject some of the court’s prior rulings on gay rights.
Democrats have an obvious hypocrisy argument to make against Senate Majority Leader Mitch McConnell (R-Ky.), who unilaterally declared Garland would not even receive a hearing, much less a courtesy meeting. McConnell said, with 11 months left in Barack Obama’s presidency, that voters had already started casting ballots in the 2016 primaries and the election should determine who picked Scalia’s replacement.
Now, as Barrett’s likely selection comes barely five weeks before the election, with voters already mailing in ballots in many states, Republicans are plowing full-speed ahead with the stated goal of a confirmation vote a few days before the election.
Democrats are adamant that they have learned from their 2016 mistakes, when their process arguments went nowhere. Trump won, in part, because evangelicals who hesitated to trust him wanted to keep that Supreme Court seat, and Republicans held the Senate.
“Look, I think the process arguments seldom make much of a difference to the public. I think what is much more important is, the reasons why McConnell has pulled the levers in the way he has, always on behalf of the rich and powerful, never in the interest of working Americans,” Sen. Michael F. Bennet (D-Colo.) said.
McConnell finds total comfort in Democratic hypocrisy arguments.
Each side has flipped its position so often, depending who holds the majority, that McConnell just throws Democrats’ previous statements back at them, trying to muddy the waters. He then moves ahead at breakneck speed as policy ramifications get lost in the procedural kerfuffle.
Soon after Ginsburg’s death, McConnell seized on some suggestions that, should Biden win, Democrats will simply add justices to the court to create a liberal majority — exactly the sort of process fight he favors.
From moderates such as Bennet to liberals such as Sen. Elizabeth Warren (D-Mass.), Democrats instead want to replicate their 2017 fight to defeat McConnell and preserve the ACA.
“You know, we didn’t have the votes when the Affordable Care Act came up in 2017, but people all across this country got engaged. And finally, it hung by a single thread. But here in the United States Senate enough Republicans stepped up and saved health care for tens of millions of people. Health care is on the table once again,” Warren told reporters.
There were process arguments to be made back then — McConnell used a fast-track budgetary maneuver to avoid 60-vote hurdles of a filibuster — but instead they drove home policy impact messaging. The ACA provided insurance for 20 million Americans and protected more than 100 million with preexisting conditions from exorbitantly high increases in medical bills, which Democrats hammered home, creating a political firestorm for McConnell.
Three Republicans — Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska), along with the late John McCain (Ariz.) — broke ranks and defeated the bill.
During the winter impeachment trial, Democrats returned to a process argument and spent most of their time pleading for more witnesses to buttress their case that Trump had pressured Ukrainian leaders to conduct a politically motivated investigation into Biden’s family.
When the key GOP swing vote, Sen. Lamar Alexander (Tenn.) announced his opposition to witnesses, he said that he did not need to hear witnesses, that Trump had done most of what Democrats alleged but he did not believe it was an impeachable offense.
The process argument lost again.
Now, with Collins and Murkowski already opposed to moving a nominee this close to an election, Democrats want to create an inside-outside balance. Inside the Senate this past week, Minority Leader Charles E. Schumer (D-N.Y.) regularly railed against McConnell by repeating his 2016 quotes, often with charts.
But within seconds of appearing Wednesday night before the roughly 3 million people watching “The Rachel Maddow Show” on MSNBC, Schumer went straight to substance.
The nominee, he said, “will pose a real threat to Americans in their lives. This is not just a game of politics, Democrats, Republicans. This nominee and a conservative right-wing court will take away America’s rights.”
The result, they hope, will be that at least two more Republicans up for reelection will face so much pressure that they beg McConnell to hold off the vote on Barrett. Or, if she’s confirmed, voters will punish Republicans with their votes this fall.
“This is not a process issue,” Sen. Ron Wyden (D-Ore.) said. “If you don’t trust Republicans on health care, you shouldn’t trust them on this Supreme Court nominee. That’s the ballgame to me.”
