Democratic lawmakers are furious that Republicans appear poised to win their nearly five-decade battle to overturn Roe v. Wade, a cause that Senate Minority Leader Mitch McConnell (R-Ky.) advanced by helping stock the Supreme Court with conservative justices.
A leaked opinion written by Supreme Court Justice Samuel Alito declaring the landmark abortion rights case “egregiously wrong” caps 20 years of combat between Senate Majority Leader Charles Schumer (D-N.Y.) and McConnell and other Republicans over the composition of the court.
Republicans often accuse Schumer of sparking the Senate’s judicial confirmation wars in 2003 by leading Democratic opposition to then-President George W. Bush’s conservative appellate court nominees, such as Miguel Estrada, who were seen at the time as potential Supreme Court nominees.
Now McConnell is on the cusp of a major victory as the Supreme Court is poised to strike down the controversial abortion decision that mobilized conservative activists for five decades — and Democrats are seething over it.
“If we had to pick a word that our caucus feels, it’s infuriated. Infuriated by the alleged decision, infuriated by the lies these justices told us when they said they’d respect precedent, infuriated by our Republican colleagues who don’t tell the truth,” Schumer told reporters after a Senate Democratic lunch meeting.
Schumer accused Republicans of now trying to duck responsibility for a decision that has enraged liberals and could turn off suburban women voters, a key electoral bloc, ahead of the 2022 midterm election.
He predicted that Republicans would suffer a backlash from voters this fall.
“Our candidates are already talking about this from one end of the country to the other,” he said. “I cannot tell you the outrage I feel at this decision and the outrage I feel that Republicans who did it won’t own up to it, and duck it. It’s despicable.”
McConnell on Tuesday focused his comments on the unusual leak of the unpublished opinion, dodging questions about whether he felt gratified over the victory given how much he has done to shape the court in recent years.
“I think the story today is the effort by someone on the inside to discredit the institution of the [Supreme Court],” he told reporters when asked if he’s already taking credit for the expected restriction of abortion rights, a long-held goal of the Republican base.
McConnell in a 2019 interview applauded the chance to “pick away” at Roe v. Wade.
“There are a number of state legislatures who have enacted new legislation would be winding its way through the courts and gives us an opportunity to begin to pick away at Roe v. Wade,” he said.
Schumer on Tuesday said a complete reversal of Roe v. Wade, however, was more than Republicans bargained for.
“They spent a decade, two decades trying to repeal Roe, and now they won’t own up to it. They’re like the dog that caught the bus,” he said. “They know they’ll pay consequences in the 2022 elections, and their spin masters are telling them to avoid the subject.”
McConnell’s role over the years in setting the stage for Alito’s bombshell abortion rights opinion makes the situation all the more frustrating for Democrats.
A decision to overturn Roe v. Wade would not have been possible if McConnell didn’t hold vacant the seat of late Justice Antonin Scalia for more than 10 months during the 2016 election, when he refused to give then-President Obama’s nominee, Merrick Garland, a hearing or a vote.
McConnell argued at the time that winner of the 2016 presidential election should pick the nominee, keeping the seat open for President Trump to nominate Neil Gorsuch to the court the following year.
He further angered Democrats by pushing through a change to Senate rules to allow to reduce the threshold for confirming a Supreme Court nominee from 60 to 50 votes, allowing Gorsuch to join the court after a 54-45 vote.
Republicans argued the rules change was inevitable after then-Senate Majority Leader Harry Reid (D-Nev.) eliminated the minority party’s power to filibuster executive branch and most judicial branch nominees in 2013.
McConnell later appeared to reverse himself when he acted speedily to install conservative Judge Amy Coney Barrett to the Supreme Court before the 2020 election after liberal Justice Ruth Bader Ginsburg died shortly before the election.
The GOP leader said, however, that the situation was different from the one in 2016 because different parties controlled the White House and Senate that year, while Republicans controlled both in 2020.
“Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” he argued the day Ginsburg died, justifying his plan to move her replacement through the Senate over the span of just 30 days.
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) said “McConnell’s goal has been so clear.”
“That he would leave a vacancy on the Supreme Court for over 10 months while he waits for the presidential election tells the whole story,” Durbin said Tuesday morning. “He was doing his best to organize a court which would rule on his side on political issues.”
“He has done that at every level — record numbers of federal judges all cleared by the Federalist Society — and now of course the strategy on the Supreme Court. So he has involved the judicial branch of the government in a political way the likes of which we haven’t seen for decades,” he added, making reference to the conservative legal policy group that has played a central role in vetting Republican judicial nominees over the last two decades.
At the end of his one term in office, former President Trump had appointed nearly 230 federal judges, or 1 in every 4 judges sitting on a federal court, and one-third of the justices on the Supreme Court.
Democrats feel deeply frustrated that they not only lost the political fight with Senate Republicans over the ideology of the court in recent years, but that Alito’s decision, if it is indeed informed by at least four other justices, undermines years of victories to protect and expand abortion rights.
“The real concern — you can call it anger, I think it’s more of a concern — is that we’re taking a step backwards and women can’t make their own health decisions. I think that’s really what’s frustrating. For 50 years, women have had this right and now it’s being taken away,” said Sen. Jon Tester (D-Mont.). “Fundamentally this right has been taken away and people need to be held accountable.”
Alito’s choice of assertive language in the draft — declaring Roe “egregiously wrong from the start” and its reasoning “exceptionally weak” — further rankled Democrats.
“The language he used is very unjudicial and unbecoming for the Supreme Court. I suspect they’ll smooth the rough edges and eliminate some of the stridency but the result is what’s so critical, to overturn Roe v. Wade,” said Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee.