Legal

If they can’t beat Kavanaugh, they’ll use his conservative views to fuel their ‘blue wave.’

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.”

Elections

The former vice president spends Labor Day courting midterm voters in Pittsburgh, but also doing his own gut check for a possible 2020 run.

PITTSBURGH — Cue the jokes: Joe Biden is running. In fact, he spent much of Labor Day sprinting, more than a mile in total, doing intervals through the streets of one of America’s biggest union towns.

Biden was here for the city’s Labor Day parade three years ago, the one and only campaign event of his almost-but-never-launched 2016 presidential campaign. A year later, he was back with Tim Kaine, trying to transfer his connection with these voters to the Democratic ticket.

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Monday’s parade kicked off what will be an intense, nine-week stretch of campaigning for Democratic candidates in the midterms, but also an extended gut check of whether the country has an appetite for another Biden run—and for him to decide if he has the appetite to make one.

But here, in a part of the country that helped tip the 2016 election to Donald Trump but has since delivered Democrats their only House special election win, this is what a potential 2020 bid would look like: classic retail campaigning in parts of the country where Democrats have atrophied and which Hillary Clinton wrote off. When he was finished marching, Biden huddled with union head United Steelworkers president Leo Girard. There was even a videographer on the payroll catching every interaction, and a young man from the Republican attack group America Rising following along with his own camera, mumbling questions and then remarking with staged wonder into the camera that Biden wouldn’t answer them.

“If I were to run for president, I’d be here a lot,” Biden said at the end of the parade route, standing in front of the United Steelworkers Building.

He ate eat ice cream, kissed foreheads, and repeated the same stories about his father and grandfather’s working class roots. He talked about unity, decency and reasserting what he thinks America is: Don’t just keep the faith, he told them, spread it.

“Let’s stop walking around with our heads down, wondering what the hell is going on here. It’s time to say, ‘Enough,’” he said in a speech after the parade at the International Brotherhood of Electrical Workers union hall. “It’s not about politics. It’s about America.”

Biden has settled on a way of answering every question about Trump.

What does he make of the president’s petulant response to critic John McCain’s death and anti-Trump funeral services?

“Everybody knows who the president is,” Biden said.

What does he think of Trump saying he’s the real friend of American workers?

“Everybody knows who Donald Trump is,” he said in the same tone over an hour later.

For all the people urging him to run, Biden has not made up his mind. He has not taken many steps toward putting together the kind of national operation he’d need to run for president for what would be, depending on how it’s being counted, either the third or the fifth time. In 2015, his jogging down the street and glad-handing was meant to answer all the questions about his age and emotional state about the death of his son Beau. He and the group of current aides and volunteers from his old government staff who ran alongside him were glad for people to see the shape that Biden’s still in.

So far the only event firmly on Biden’s midterms itinerary is on Wednesday in New Jersey with House candidate and Obama administration alum Mikie Sherrill. But many more requests are in, and Biden’s team is working to get him out several times a week.

He’ll be all over the country — though deliberately, not to Iowa or New Hampshire, to avoid the conversations that would prompt — tapping into popularity that’s highest in precisely the parts of the country his party needs to win. He’ll be the most in-demand, most active Democrat on the trail, with the Clintons largely benched and Barack Obama limiting his own appearances. His wife, Jill Biden, will be out on the trail, too.

It’s a battle for the soul of America, Biden said, as he came out of the traditional pre-parade morning mass at St. Benedict the Moor church and slipped on his famous aviator sunglasses.

What’s at stake? he was asked.

“Everything,” he said. “It’s simple: everything.”

Biden wasn’t the only prospective 2020 candidate spending Labor Day in his electoral heartland, appealing to union traditions and a need for unity.

“We have a president who is not doing what almost every president in American history has done: When you make it into the Oval Office, you understand you’ve got a sacred responsibility to bring the American people together,” Vermont Sen. Bernie Sanders told a crowd at an AFL-CIO Labor Day breakfast in Manchester, New Hampshire. “Today we have a president, who for cheap political reasons, is trying to divide us up.”

Biden’s own reaction, when asked about the rise of self-proclaimed socialists in his party largely prompted by Sanders’ 2016 run: “I’m a Democrat.”

In Pennsylvania, though, the focus is on turning the state blue again. Pennsylvania Democrats recite that Trump won the state by 44,000 votes as if they’re still doing penance. Everything this year is about proving that it can’t happen again.

There’s cautious optimism about elections this fall for governor and Senate. Democrats are favored heavily in both races.

“We want to reach out to and activate new voters, but we also can’t forget that we need to reach out to the persuade-ables who left us in 2016,” said John Fetterman, the candidate for lieutenant governor, who marched with Biden.

But Sen. Bob Casey, who featured Biden on Sunday night at a fundraiser for his reelection campaign, said he didn’t think the former vice president is his party’s only hope in 2020.

“I think there are a lot of Democrats that can win Pennsylvania,” Casey said.

As for what he wants to see, Casey laughed.

“I want Joe Biden to make his own decision. I’ve purposefully not asked him,” Casey said.

Pretty much everyone else in Pittsburgh did on Monday, and Biden engaged most of them.

“When you came here three years ago,” a woman along the route told him, “I said, ‘Biden and Elizabeth Warren.”

“Maybe,” Biden told her with a smile.

At the electrical workers hall, an older woman in a union hat and “Republicans for Conor Lamb” pin walked up to Biden.

“God has a strange sense of humor,” she said, her voice shaking. Maybe this was all about arranging the world so that he’d be president.

Biden kissed her on the cheek. He hugged her. He gripped her hand, and kissed it.

David Siders contributed to this report.