WASHINGTON (Circa) — Heading into the November midterms, Senate Democrats have made the fight over health care the central pillar of their national campaign strategy and are leveraging that issue to try to block Judge Brett Kavanaugh's confirmation to the Supreme Court.
Ahead of Kavanaugh's confirmation hearings scheduled for the first week of September, Democrats promised to press the nominee to reveal how he will rule on cases dealing with health care and women's reproductive rights.
Senate Minority Leader Chuck Schumer, D-N.Y, sat down with Judge Kavanaugh Tuesday afternoon and left the hour and a half meeting without learning anything new about how he would rule on hot-button issues like the Affordable Care Act or abortion.
"The conversation was cordial, it was direct, but unfortunately Judge Kavanaugh refused to answer even the most basic questions about his jurisprudence and judicial philosophy," Schumer told reporters.
Schumer, who has vowed to oppose Trump's nominee "with everything I've got" specifically pressed Kavanaugh on whether he believed the Affordable Care Act was constitutional, a case currently pending before a federal court in Texas. Schumer also asked whether he believed the 1973 Roe v. Wade decision to legalize abortion was "correct."
The nominee refused to answer either question directly, Schumer said.
The minority leader concluded, "If the American people are convinced that Judge Kavanaugh as justice would overturn Roe, would overturn ACA, end the right to be protected when you have a pre-existing condition, he will be defeated by a bipartisan majority here in the Senate."
Many Democrats are working hard to make that argument ahead of the confirmation hearings and the final vote on Kavanaugh, expected in October. However, their efforts to get Judge Kavanaugh to reveal his thinking on specific issues will likely not be successful, according to Republicans.
"I think it's ridiculous," Sen. Orrin Hatch, R-Utah told Circa. "They want to know in advance how he's going to rule. If I were him, I wouldn't give them the time of day on that."
Sen. Lamar Alexander, R-Tenn., argued that Kavanaugh should follow the so-called Ginsburg Rule. Justice Ruth Bader Ginsburg, in her confirmation hearing, told senators she would give "no hints, no forecasts, no previews" of how she may vote if confirmed to the bench.
"Judges aren't supposed to decide a case in advance, that's why we have judges," he continued. "And of course a justice’s opinion and decision can be surprising."
Thomas Jipping, a senior legal fellow at the Heritage Foundation, which helped select Kavanaugh, said liberals "are asking the wrong questions" when it comes to evaluating the nominee's qualifications.
"They want to know what a judge is going to do in the future on specific issues. You can ask that of someone running for office, but it's the wrong question to ask a judge," he said. Jipping expects Democrats will be unable to find fault with Kavanaugh's character and he will be confirmed with bipartisan support.
Without enough votes to block Kavanaugh, Democrats hope to use the issue the politically sensitive issues of health care and reproductive rights to break off one or two Republicans. Republicans have a narrow 51-49 vote majority and with Sen. John McCain, R-Ariz., receiving cancer treatment away from Washington, the GOP cannot afford to lose a single vote.
Sen. Susan Collins of Maine is among the possible Republican swing votes. Collins, who supports abortion rights, has publicly raised concerns about Judge Kavanaugh's position on Roe v. Wade.
After meeting the nominee Tuesday, Collins told reporters she was "pleased" that the nominee views Roe v. Wade as established law but still has questions.
"I was pleased when he [Kavanaugh] said he agreed with Chief Justice [John] Roberts' statement at his confirmation that Roe was settled law," Collins said. She expects to raise the issue again at the confirmation hearings next month.
Sen. Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee, also met with Kavanaugh this week but would not reveal what they discussed or how she felt about the nominee.
Feinstein told reporters she intends to talk with Kavanaugh a second time before the confirmation hearings begin on September 4. Those hearings are scheduled to last between three and four days.
Red state Democrats Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana met with Kavanaugh over the past two weeks and they have not given any indication as to whether or not they will support the nominee. All three senators voted to confirm Justice Neil Gorsuch, Trump's first Supreme Court nominee and could potentially break with Democrats to support Kavanaugh.
"I'm looking at the person who is the best qualified to be a jurist at the highest level," Manchin told reporters when asked about his earlier meeting with the nominee.
Manchin said he was more focused on the nominee's qualifications, rather than speculating on how he may rule on a future case. "You can't predict the person, how they're going to vote."
Both liberal and conservative judicial activist groups have unleashed multimillion dollar advertising campaigns to influence possible swing votes like Manchin, Heitkamp and Donnelly as well as Republican Senators Susan Collins of Maine, Lisa Murkowski of Alaska and Dean Heller of Nevada.
The conservative Judicial Crisis Network pledged to spend $10 million on ads targeting vulnerable Democrats and possible swing Republicans.
Demand Justice, a liberal group, pledged to spend $5 million opposing Kavanaugh, released targeted advertisements warning that a vote for Kavanaugh will end "Obamacare's" guaranteed coverage for pre-existing conditions and overturn abortion rights.
Increasingly in recent months, Democrats have turned to health care as an issue to energize their base. an issue to energize in rallying opposition to Kavanaugh and leading into the midterms.
Sen. Dick Durbin of Illinois, the second-ranking Senate Democrat, acknowledged that the minority party's focus on how Kavanaugh may decide a future case dealing with the ACA "is certainly part of the midterm campaign, but it is in good faith."
On both the left and right, there are concerns that Texas case challenging the Affordable Care Act could end up before the Supreme Court. The plaintiffs, 20 Republican-led states and the Trump Department of Justice, argue that the Affordable Care Act's mandate to purchase insurance is unconstitutional. The case also challenges the law's requirement that insurers cover individuals with pre-existing conditions.
Health care continues to be among the top issues voters want to hear candidates talk about heading into November. Voters on the left, right and center have said that guaranteed coverage for people with pre-existing medical conditions is their biggest health care concern.
The possibility the Supreme Court could overturn ACA protections for pre-existing conditions weighs heavily voters. Nearly two-thirds (64 percent) of voters said they do not want to see the Supreme Court overturn guaranteed coverage for pre-existing conditions, according to a recent poll by the Kaiser Family Foundation.
More than half of respondents (52 percent) said they are opposed to the Supreme Court overturning "Obamacare" more generally.