Though even conservative legal scholars dispute their claims, a number of Republicans say the mandate that uninsured individuals buy health insurance is unconstitutional, and think the courts might be a prime avenue for repeal. Democrats love this, as it allows them to place the GOP in opposition to a number of the health care law's more popular provisions.
"If they're going to ask a nominee how would you vote on this issue, I don't think any nominee, Republican or Democrat would answer that question if it's going to come up," Senate Judiciary Committee Chairman Patrick Leahy told me this morning. "I know that some of the Republican Attorneys General say that this is unconstitutional to say that parents can have their children on their insurance policies till they're 26. Most parents I've talked to in Vermont--Republican, Democrat--think it's a great idea."
Meanwhile, Graham says that, after health care, Democrats shouldn't expect any cooperation from Republicans on confirmation of any of Obama's judicial nominees.
"We're not going to be lectured to by our Democratic colleagues about what to do here after health care," Graham said. "They're not going to tell us what we'll do, we'll decide on our own what to do."