Ethics and Democracy

The 2-Step Strategy to Win the Supreme Court Fight

Donald Trump has nominated Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court. Justice Kennedy’s retirement sets up a monumental shift in the balance of the Supreme Court. Kennedy was often (but not always) a moderating force on the Court, and was key to many instrumental decisions on issues that affect us all. Kavanaugh, on the other hand, is a partisan Republican and an extremist who will set the Court back decades on reproductive rights, health care, LGBTQ rights, money in politics, environmental protection, and more. Further, he is likely to prevent Trump from accountability for his corruption and crimes.

If Trump successfully installs Kavanaugh to fill that seat, the Court will rubber stamp the Trump agenda for a generation to come. Kavanaugh was part of Trump’s “short list” of 25 possible justices, each of whom was screened for their willingness to overturn Roe v. Wade and undo the Affordable Care Act.  His nomination puts settled rights like abortion, marriage equality, and health care back under threat.

Here’s what we can and can’t do in response to this vacancy, and how we could win.

What to expect in the Senate

Under the Constitution, the Senate must confirm all nominees to the Supreme Court. In practice, this means that Kavanaugh has to have a hearing and a confirmation vote in the Senate Judiciary Committee, then another confirmation vote in the full Senate (which now requires a simple majority of Senators to vote “yes” to confirm).  

The hard truth: there is no procedural tool to stop this

The last time there was a vacancy on the Supreme Court, it was after Justice Scalia passed away and Mitch McConnell used an unprecedented level of obstruction to keep President Obama’s nominee, Merrick Garland, from so much as having a hearing in the Senate. This kept the seat vacant for over a year, until Trump became president and nominated Neil Gorsuch.

Up until that point, Senate rules required Supreme Court nominees to get 60 votes to be confirmed to the bench. But McConnell didn’t have 60 votes—so he changed the rules, using the so-called “nuclear option,” so that nominees required only a majority. That is still the Senate’s rule today. And because there are currently 51 Republican Senators, that means they have the votes to confirm Kavanaugh. Unless we stop them.

The 2-step strategy

The only way we can defeat Trump’s nominee is to:

1. Get to 51 votes. To start, we need 49 “no” votes from EVERY SINGLE SENATE DEMOCRAT to have a fighting chance. That means we need Minority Leader Schumer whipping as hard as he can and as long as he can to keep his caucus in line. And it means we need the three Democratic Senators who voted for Justice Gorsuch—Senators Manchin (WV), Heitkamp (ND), and Donnelly (IN) to stand with us this time. If we lose any of these Dems, we will lose.

That gets us to 49. To get to 51, we need a couple Republican Senators. The two most logical targets are Senators Collins (ME) and Murkowski (AK). Kavanaugh’s nomination has extraordinary implications for Roe v. Wade and reproductive rights—and both of these Senators are pro-choice, with a history of bucking their party to stand up for women’s health. They would deal a devastating blow to women everywhere if they supported Kavanaugh.

Trump announced his SCOTUS pick Monday, July 9. From Monday, July 9 until Friday, July 13, join our week of action and show up at Senate District Offices to demand our senators protect our democracy—our choice, our affordable health care, our rights—and #SaveSCOTUS. Search for an event below and learn more here.

Use our tracker to find out where your senators stand.

2. Take back the Senate. If we accomplish that first step, that will extend the fight past November. But that’s not enough. In order to actually win this fight, we have to retake the Senate, otherwise Trump will just appoint another extremist after the election. Democrats need to hold all of their seats and PICK UP TWO MORE SEATS. There are 5 pickup opportunities this year:

  • Defeat Ted Cruz (Texas)
  • Defeat Dean Heller (Nevada)
  • Defeat Cindy Hyde-Smith (Mississippi)
  • Replace retiring Republican Bob Corker (Tennessee)
  • Replace retiring Republican Jeff Flake (Arizona)

Are these tough? Yes. Are they impossible? No—we’ve got a chance. And we just need 2 of them.  If we do the work now – if we phone bank, knock on doors, and send texts to voters—we can retake the Senate and stop confirmations of bad judges for the rest of Trump’s term.

But what about withholding consent?
Withholding consent is a key procedural tactic that can delay Senate business. It was a winning strategy while TrumpCare was moving through the Senate in June 2017. That’s because it slowed down other things the Senate was working on, and it raised the profile in the media of what was otherwise a secret process undertaken by an informal group of Republican Senators to draft and sell the bill behind the scenes.

That is not the situation we are in now. No Senator or group of Senators can withhold consent long enough to get us into November, or January, or some other point in the future. At best, withholding consent buys Democrats a few days or a week in delays. That is not long enough to stop this nomination. It’s a painful truth but a truth nonetheless: there is no procedural silver bullet to stop this.

Executing the 2-Step Strategy in your home turf

Step 1: How you can help us get to 51 votes.

Call your senator. Everybody has a unique role to play—your “ask” is different depending on what kind of Senators you have:

  • New Yorker? New Yorkers have a chance to pressure Democratic Minority Leader Chuck Schumer to hold Democrats together. We want every senator—especially these key senators—to commit immediately to opposing Kavanaugh. As Minority Leader, Schumer has a responsibility to keep his caucus together. Ask him to whip to ensure that the three Democrats who voted for Gorsuch—Donnelly, Heitkamp, and Manchin—hang tight.
  • Got a Democratic Senator? ell your Senator to commit immediately to opposing Kavanaugh. His record speaks for itself: he is hostile to the Affordable Care Act, puts Roe v. Wade and marriage equality at risk of being overturned, and would undo key protections for everyday Americans like environmental regulations, the Consumer Financial Protection Bureau, and net neutrality. No Democratic Senator should have to wait for Kavanaugh’s confirmation hearing to know he is a bad choice.
  • Got a Republican Senator? The ‘ask’ is the EXACT SAME as for Democrats. Republican Senators Murkowski (Alaska) and Collins (Maine) have previously encouraged Trump to look beyond his list of extremists—now that he’s chosen from among them, it’s time to turn up the heat.

Click here for everything you need to know about Brett Kavanaugh and why your senators must commit to opposing nomination IMMEDIATELY.

Call Your Senator Now

Step 2: How to help us retake the Senate

We need your people power to retake the Senate—not just in November, but NOW. Money doesn’t win elections—people do. There are hundreds of Indivisible groups throughout our five target states—Arizona, Mississippi, Nevada, Texas, and Tennessee. They’ve been working their butts off and we need to lend them a hand. If you’re in those states—great! Keep it up. If you don’t live in those 5 states, we need you to pitch in.

So what can you do from where you live? Indivisible is running a massive phone bank for the last 100 days before the midterms to elect candidates who will resist the Trump agenda and build long-term progressive power from the ground up—including by retaking the Senate this year. We absolutely cannot wait until November to start helping in these races—if we want to win, we have to get moving.

Flip these seats.

Work in these races.

Join the fight of our lifetime.

Join Our Phone Bank To Flip The Senate