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Facing long odds in Kavanaugh fight, Democrats make it all about Trump

By Ben Bain and Ben Brody • Sep 9, 2018 at 8:00 PM

WASHINGTON –– Facing an uphill battle to derail Donald Trump’s second nominee to the U.S. Supreme Court, Senate Democrats fanned out Sunday to cast Judge Brett Kavanaugh’s confirmation fight as a referendum on White House accountability.

Liberals fear that elevating Kavanaugh to the nine-person court could create the most conservative panel since the 1930s and lead to reversals of precedents including abortion rights.

Yet, despite the variety of policy concerns, Democrats preparing for a final fight to block Kavanaugh are focused on what they consider a more pressing threat: Trump himself.

Some of Kavanaugh’s previous judicial decisions “suggest he has a very broad view of presidential power” that may amount to an “accountability shield” for Trump, Sen. Chris Coons, D-Del., a member of the Judiciary Committee, said on “Fox News Sunday.”

“That ought to be a concern for everybody watching — Republican, Democrat, independent — because whether it’s this administration or a future one, I think all of us have an interest in the rule of law and in a president who’s not above the law,” Coons said.

Richard J. Durbin of Illinois, the No. 2 Senate Democrat and a member of the Judiciary Committee, cited Kavanaugh’s views on executive privilege and the intersection with the ongoing investigation by special counsel Robert Mueller of Russian interference in the 2016 election and possible collusion by the Trump campaign.

“The issue of the moment, clearly, is this situation with the Mueller investigation,” Durbin said on NBC’s “Meet the Press.” “And the important element that we shouldn’t overlook is that Kavanaugh has been explicit in saying the president should not be subject to investigation or prosecution during his term in office.”

During his confirmation hearing last week, Kavanaugh, an appellate judge who once worked for the independent counsel that investigated President Bill Clinton, largely sidestepped questions about Mueller’s investigation and separate inquiries by federal prosecutors in New York related to Trump.

Kavanaugh said he’d keep an “open mind” if he were asked to consider a law that protected a special counsel against being fired by the president.

Sen, Mark Warner, D-Va., echoed Coons’ concerns about Kavanaugh’s willingness to check Trump.

“I’m strongly inclined to vote against Judge Kavanaugh, not only because of his views on issues like women’s reproductive health and workers’ rights and gay rights,” Warner said on CNN’s “State of the Union” on Sunday. “I’m very concerned that this judge’s outside-the-mainstream-views on executive power, with a president that is this dangerous, in many ways disqualifies him.”

While many Democrats are expected to oppose Kavanaugh, he appears on track be confirmed to replace the retired Justice Anthony Kennedy. Republicans control the Senate 51-49, and Vice President Mike Pence would vote to break a tie.

Some Democrats running for re-election in states won handily by Trump in 2016, including West Virginia, Indiana and North Dakota, could support Kavanaugh’s nomination. A week ago, before the confirmation hearing, Sen. Lindsey Graham, R-S.C., predicted Kavanaugh may be confirmed with about 55 votes.

Senate Majority Leader Mitch McConnell, R-Ky., said last week that he’s confident Kavanaugh will be confirmed, and that the only hope of Democrats appears to be getting a few Republicans to oppose the nominee in the next few weeks. Thus far, none have committed to doing so.

Some opponents hope that two Republicans who support abortion rights — Susan Collins of Maine and Lisa Murkowski of Alaska — will vote against Kavanaugh over concerns that he could vote to overturn legal precedent on abortion rights. Neither lawmaker has said how she’ll vote.

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(Greg Stohr and Mark Niquette contributed to this report.

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©2018 Bloomberg News

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