Democrats focus on abortion in court fight, sensing Republican jitters

Updated 7/8/2018 4:16 PM

PEWAUKEE, Wis. -- The retirement of Justice Anthony Kennedy has given conservatives their first hope in decades for a court that would strike down Roe v. Wade.

At the moment, liberals are much more happy to talk about that.


In interviews on Sunday's talk shows, and in conversations in one of this year's key electoral battlegrounds, supporters of a conservative court pick often stopped short of saying that the president's nominee, to be announced Monday, would sink Roe.

Leonard Leo, a Federalist Society leader who has helped vet the nominees on the president's public shortlist, used an interview on "Fox News Sunday" to accuse opponents of any nominee of diversion.

"We only have a single individual on the court who has expressly said he would overturn Roe," Leo said. "So I think it's a bit of a scare tactic and rank speculation more than anything else."

In an interview on NBC News's "Meet the Press," when asked about Roe, Sen. Roy Blunt, R-Mo., said that "these judges, whichever one's nominated, should follow the Ginsburg strategy, which has been: no hints, no foretelling of how they're going to determine" controversial cases.

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That was a reference to Justice Ruth Bader Ginsburg, who said during her 1993 hearing that it would be "wrong for me to say or preview in this legislative chamber how I would cast my vote." Conservatives have seized on that answer and called it "the Ginsburg rule" -- but at another point in the hearing, Ginsburg said women had a "right to decide whether or not to bear a child."

During the 2016 campaign, and in subsequent interviews, President Donald Trump repeatedly assured conservative voters that his nominees would scrap the 45-year-old decision that legalized abortion across the country. In 2016, he told Fox News's Chris Wallace that Roe would be overturned if he got to appoint "two or three" justices, "because I am putting pro-life justices on the court." Kennedy had effectively preserved Roe by joining the majority in 1992's Planned Parenthood v. Casey; every judge on the Trump shortlist is seen as a likely vote against abortion rights.

"He is certainly the first major-party nominee who went on to be president to put a litmus test on Supreme Court justices, and that was to actually overturn Roe v. Wade," Ilyse Hogue, president of NARAL Pro-Choice America, said on Fox News. "We believe him. He's got a vice president who committed to, you know, throw Roe on an ash heap of history. So we think that's the mindset that many Americans are actually going into this with because it was such a vocal talking point for him."

After an initial burst of enthusiasm about the court opening, Republican politicians have characterized any questions about Roe's fate as scaremongering by Democrats.


On Friday, at a rally in Wisconsin where she was joined by House Speaker Paul Ryan, Republican U.S. Senate hopeful Leah Vukmir said Sen. Tammy Baldwin, D-Wis., "has let our unborn down," specifically by skipping a vote on legislation that would ban abortion after 20 weeks of pregnancy. In a short scrum with reporters after the rally, however, Vukmir refused to say whether she wanted the Supreme Court to undo Roe or Casey.

"The left is trying to politicize this by bringing up this case, that case; will you undo this, undo that. My focus is on somebody who will stand for the Constitution," Vukmir said. "I'm not going to comment on those particular cases right now."

Vukmir, a longtime state senator and ally of Republican Gov. Scott Walker, is facing an Aug. 14 primary against Kevin Nicholson, a Marine veteran who leads in most public polling. In an interview this weekend, Nicholson said he would support judges who were likely to overturn Roe -- but quickly suggested that anyone who wanted to keep abortion legal could wage that fight in state legislatures and Congress.

"I believe that life begins at conception, and any conservative jurist that I would support would believe the same," he said. "If the bench does what it should, then the pressure should be on legislators."

Wisconsin is one of 10 states carried in 2016 by Trump where a Democratic senator is facing reelection this year. It's also one of 20 states where an end to Roe would start a chain of events likely to restrict abortion rights; some states have "trigger laws" that would make abortion immediately illegal, while some have passed abortion limitations that are blocked by Roe.

While public polling on abortion finds support for a number of potential abortion restrictions, the popularity of Roe itself remains high. As they've put together a campaign against the president's nominee, Democratic groups have found that informing voters of a looming threat to Roe -- one that few saw as likely before the 2016 election -- is one of their strongest messages.

"The vast majority of American people, shown by poll after poll, want Roe v. Wade to be preserved," Sen. Richard Blumenthal, D-Conn., said on ABC News's "This Week." "They want protections for millions of Americans against pre-existing conditions to be sustained. They want these voting rights and gay rights and other rights to be not only preserved, but also enhanced."

On CBS News's "Face the Nation," Sen. Christopher Coons, D-Del., echoed Blumenthal, saying the next Supreme Court nominee could get the chance to undermine the Affordable Care Act and "reproductive freedom."

Democrats, bearish on their chances of stopping any nominee, believe they can put pressure on Sen. Susan Collins, R-Maine, and Sen. Lisa Murkowski R-Alaska, if the nominee is on record wanting to end Roe. If neither senator breaks, Democrats still believe that they can drive down public support for the nominee by focusing on threats to Roe, gay rights, the ACA, or environmental regulation -- even in Indiana, North Dakota and West Virginia, ruby-red states whose Democratic senators backed Trump's first Supreme Court nominee, Neil M. Gorsuch.

The conservative groups doing the most public messaging about the court fight have so far stayed away from discussing any issues. In an ad running in red states represented by Democrats, the Judicial Crisis Network's messaging closely resembles Leo's; it suggests that Democrats should let Trump confirm "another great justice" who would respect the Constitution, making no mention of the issues that might come before him or her.

On "Fox News Sunday," Sen. Lindsey Graham, R-S.C., also stayed away from any of the issues that might come before the court, emphasizing that Democrats in states won by Trump would be under considerable pressure to approve any nominee.

"Red-state Democrats are going to have a very hard decision, and I hope every Republican will rally behind these picks, because they are all outstanding," he said.

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