SCOTUS onslaught

McCaskill braces for SCOTUS onslaught

The high court vacancy has already taken center stage in her reelection campaign against Yale Law grad Josh Hawley.

By BURGESS EVERETT

Democratic Sen. Claire McCaskill is likely to oppose President Donald Trump’s Supreme Court nominee for being too conservative. And her Republican opponent for reelection, a constitutional lawyer who once clerked for Chief Justice John Roberts, is itching to make her pay.

“She’s been wrong on every single court nominee since she has been running for the Senate or in the Senate. So I’m not surprised in the least,” Josh Hawley, Missouri’s attorney general, said in an interview, sitting in a pickup truck with the AC blasting after marching in a July 4 parade.

"It is,” he added, “the defining issue of this campaign."

If the pre-nomination clash between McCaskill and Hawley is any sign, the Supreme Court confirmation battle over Trump’s high court nominee will reverberate in Missouri more than any other Senate battleground this year. Unlike a trio of other red-state Democrats on the ballot — Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Joe Donnelly of Indiana — McCaskill opposed Neil Gorsuch last year.

Republicans and Democrats expect that she’ll do the same again this time: Notably, the liberal group Demand Justice is laying off McCaskill in a $5 million ad blitz designed to persuade centrist Democrats not to break ranks. And Trump did not extend her an invite to the White House last week as he talked about the court with a group of centrists.

As McCaskill approaches one of the most politically consequential votes of her 12-year Senate career, she insists she’s not prejudging the nominee. But she’s “not optimistic” Trump will select someone she can support, making clear she isn’t making the same calculation as other at-risk Democrats, despite Trump’s 19-point win here in 2016.

“Am I optimistic that he’s going to nominate somebody that I would feel comfortable about? No, I’m not,” she said in an interview aboard her campaign RV as she rumbled from St. Louis to her birthplace of Rolla, Missouri.

McCaskill proudly proclaims that she’s a dwindling breed in Washington: A true moderate. But if she votes against the president’s Supreme Court nominee, it will be precisely the political contrast that Hawley wants to paint her as: a figure of the Trump “resistance.” The timing of Justice Anthony Kennedy’s retirement could not have worked out better for Hawley, who is being vastly outraised and outspent by McCaskill and her Democratic allies.

“Her whole rationale for her campaign ... seems to be just to say ‘no’ to President Trump. That’s certainly how she’s pitching herself to her base,” Hawley said.

McCaskill swats away the "resistance" label but is at times more critical of Trump than some other vulnerable Democrats. Yet she needs some of his supporters to be reelected and often defends Trump voters in her events. And she makes clear that she isn’t just going to vote down Trump’s nominee reflexively.

“I really don’t want, now, to say: ‘Hey, I’m going to make up my mind just because it’s his nominee,’” she said in the interview.

Missouri has morphed from a swing state into a reliable Republican vote at the presidential level, though its Senate contests are often competitive. A Supreme Court vacancy in 2016 helped nudge Sen. Roy Blunt (R-Mo.) to victory over Democrat Jason Kander that year. Blunt said that "conservative voters are more motivated by Supreme Court politics than other voters are."

Yet McCaskill may have no choice but to vote against Trump’s pick if she wants to motivate demoralized Democrats. Already she is walking a fine line between appealing to moderate voters and trying to satisfy Democrats who are livid at Trump.

Democrats argue that she has nothing to gain by siding with the president on a nominee who could shift the ideological tilt of the court for years to come.

“Nobody is going to say, ‘I was going to vote for a Republican, but now that she voted for Trump’s nominee, I’m going to vote for her now,’” said Rep. Emanuel Cleaver (D-Mo.). “I don’t think she would risk alienating her voters in a matter that would not bring in new voters on the other side. She cannot in any way [afford to] dampen turnout.”

McCaskill needs to run up margins in St. Louis and Kansas City to overcome Hawley’s built-in advantages elsewhere in the state.

McCaskill said she will "do everything I can to not make this a political calculation” and will treat the next nominee as she treated Gorsuch. After meeting with him, she decided he was an “activist” judge, citing his opinions on worker rights and Planned Parenthood.

Many of Trump’s potential nominees are in Gorsuch’s mold, a boon to conservatives looking to chip away at abortion rights, organized labor and Obamacare. McCaskill said she’s “worried” that the new justice would create a conservative majority that would overturn Roe v. Wade and the health care law.

“There’s no question that the president said, ‘I’m going to appoint people who overturn Roe v. Wade,’” McCaskill said.

Hawley said he‘s not urging selection of a nominee who wants to reverse the 1973 precedent. But he is open about how he feels about that decision.

“It was wrongly decided. I think that Roe should be overturned,” the Yale Law School graduate said. “But ultimately that’s going to be up to the court, and I think that the way you should go about picking a justice ... is you’ve got to ask about philosophy.”

Hawley has challenged McCaskill to a debate on the Supreme Court nominee. She declined. Hawley still has to win the GOP nomination in an Aug. 7 primary.

Regardless, the Supreme Court vacancy is already ever-present in the race. Democrats constantly ask McCaskill to explain why Senate Democrats can’t simply stop the nominee, or delay confirmation until after the election.

“What I can’t tell you is everything is going to be OK. [Republicans] have the votes, they changed the rules, they changed the norm,” she told a group of Democrats at a taco shop in Washington, Missouri, this week.

Later, in St. Louis County, Nathela Crooks, 84, pleaded with McCaskill to “hold” Senate Majority Leader Mitch McConnell (R-Ky.) to his own standard and push the nomination past the election. “He’ll pay us no mind,” McCaskill responded.

Some supporters want to see McCaskill turn her well-known combative streak against Trump.

“My sense is the Democratic Party has been too acquiescent, too much. Too gentle,” said Carmen Kuehner of St. Charles.

The Supreme Court vacancy isn’t McCaskill’s favorite topic. She’d rather talk about her bipartisan legislative successes and thrash Hawley’s lawsuit against Obamacare, which may come before the new high court in the near future. The high court battle is right in her opponent’s sweet spot — Hawley even met his wife, Erin, while both were clerking for Roberts.

“This is obviously some place he feels comfortable, talking about everything that is the Supreme Court,” she said. But “Look at the decisions that have to be made week in and week out [in the Senate], this is a very small percentage of the workload. There is a whole lot of other stuff that Missourians have no idea where he stands. None.”

Unlike McCaskill, Hawley lacks a voting record and often tries to turn questions about his views into attacks on the incumbent. He’s trying to portray McCaskill as an impediment to Trump, citing votes against Obamacare repeal, tax reform, Gorsuch and CIA Director Gina Haspel.

Nevermind that she supported Secretary of State Mike Pompeo and a host of other Trump appointees — two-thirds of them, by the senator’s count. If she votes against the Supreme Court nominee, Hawley believes he will have the final proof point he needs that McCaskill is part of the “resistance. Capital R.”

“As if you needed more evidence,” he added.