Capitol Correspondence - 07.16.18

Senate Prepares for SCOTUS Nomination Fight, Axios Analysis on Nomination’s Medicaid Impact

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According to CNN:

“President Donald Trump has nominated Brett Kavanaugh to join the US Supreme Court, setting the stage for a dramatic confirmation battle over a stalwart conservative who could shape the direction of the court for decades to come.

If confirmed, Kavanaugh would replace a frequent swing vote on the bench, retiring Justice Anthony Kennedy, who often sided with his liberal colleagues on issues such as abortion, affirmative action and LGBT rights.

Kavanaugh, 53, is a judge on the US Court of Appeals for the DC Circuit and Yale Law School graduate who previously served in both Bush administrations. He also worked on independent counsel Ken Starr’s investigation of President Bill Clinton.”

According to Politico Pro, Democratic leadership is gearing to oppose his nomination: “Senate Democrats can successfully orchestrate the rejection of Supreme Court nominee Brett Kavanaugh, Senate Minority Leader Chuck Schumer said Tuesday morning, if they can convince the American people that his confirmation will lead to the undoing of abortion rights and the Affordable Care Act by the Supreme Court.


With Republicans in control of a 51-49 majority in the Senate, Schumer would indeed need at least two GOP lawmakers, plus the vote of every single Democrat, in order to successfully block Kavanaugh’s confirmation. But with Sen. John McCain (R-Ariz.) away from Washington as he undergoes cancer treatment, the Republican majority is effectively 50-49, meaning Democrats might need only to peel away a single GOP senator. ”

While traditionally a Supreme Court nomination would need 60 votes to pass, this is no longer the case due to a change in rules instituted by Senate Majority Leader McConnell (R-KY) during the nomination of Justice Gorsuch. This means that Kavanaugh’s confirmation could pass with a simple Senate majority. Given this change in rules, Kavanaugh’s confirmation seems likely, as reported by The Hill:

“Supreme Court nominee Brett Kavanaugh seems on track for confirmation, as moderate Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) have not signaled plans to oppose his confirmation despite strong lobbying over their votes.

Neither moderates voiced any misgivings at a meeting of the entire GOP conference Wednesday that was devoted to discussing Kavanaugh’s nomination, according to lawmakers in the room.”

According to Axios, the nomination could carry implications for the future of Medicaid, particularly pertaining to Medicaid providers’ ability to sue the program over coverage and payment rates. Specifically, Axios writes: “This issue could find its way back to the court relatively soon. Kansas and Louisiana have asked the Supreme Court to hear cases regarding about whether they can exclude Planned Parenthood from their Medicaid programs, and whether Planned Parenthood can sue over that exclusion.”

While the Axios example pertains to abortion issues, ANCOR will monitor developments that could carry implications for the Armstrong case, which is specific to I/DD providers and finds that providers do not have the right to sue over inadequate payment rates.