A progressive push to expand the Supreme Court is running into an unusual buzzsaw: fellow Democrats.
Calls for Democrats to remake the judiciary are ramping up as Republicans appear poised to put Amy Coney BarrettAmy Coney BarrettWashington flooded with Women’s March protesters ahead of Barrett confirmation vote Appeals court upholds Kentucky abortion law requiring clinics to have transfer agreements with hospitals Liberals should embrace Trump’s Supreme Court nominee MORE, a sixth conservative justice, on the bench.
It’s a decision that will have decades-long reverberations, progressives warn, unless Democrats make systemic changes to the judiciary next year if they win back the Senate majority and White House in November, something they are feeling increasingly bullish about.
“If Republicans proceed as expected, Democrats will have every right to consider Barrett illegitimate and pursue structural reform to restore ideological balance to the court,” said Brian Fallon, the executive director of the progressive group Demand Justice.
But supporters of court reforms face an uphill climb even if Democrats find themselves with a trifecta next year for the first time since 2010, when they lost the House in a Tea Party wave.
Top Democrats ranging from Democratic nominee Joe BidenJoe BidenConservatives seize on New York Post story to push Section 230 reform Trump wishes Harris ‘the best’ after aide tests positive for COVID-19 Pennsylvania rejects 372K mail-in ballot applications following primary confusion: report MORE to congressional leadership have been noncommittal while at the same time, with an eye on keeping the party united heading into Nov. 3, not ruling it out.
And several rank-and-file Democrats and hopefuls in key races have been cool to the idea even while accusing Republicans of driving the Senate and courts to institutional breaking points by refusing to give Merrick GarlandMerrick Brian GarlandBiden keeps both sides guessing on court packing Biden town hall questioner worked as speechwriter in Obama administration: report Trump rebukes Collins amid difficult reelection fight MORE, former President Obama’s final Supreme Court nominee, a hearing or a vote but moving to quickly confirm Barrett.
“There is no active conversation or deliberation about any changes in court composition,” said Sen. Dick DurbinRichard (Dick) Joseph DurbinProgressive group: Feinstein must step down as top Democrat on Judiciary panel Judiciary Committee sets vote on Barrett’s nomination for next week GOP barrels toward vote on Barrett’s Supreme Court nomination MORE (Ill.), the No. 2 Senate Democrat and a member of the Senate Judiciary Committee.
The main headache for progressives — beyond getting Biden, a decades-long institutionalist, on board — is the tough math they face that is likely to leave them little room for error and needing nearly every, if not every, vote among Senate Democrats.
Absent a Democratic wave, their margin is likely to be narrow. While FiveThirtyEight, for example, gives the Democrats a 73 percent chance of winning back the Senate, it rates the most likely outcome as a 51-49 split, followed by 52-48 and then 50-50.
Expanding the number of Supreme Court seats would require two steps: nixing the 60-vote legislative filibuster and then passing legislation to change the number of justices from nine.
If Democrats have a majority capped in the low 50s, that means supporters will need near-unanimous support within a caucus that ranges from progressives such as Sens. Elizabeth WarrenElizabeth WarrenGeorgia senator mocks Harris’s name before Trump rally: ‘Kamala-mala-mala, I don’t know’ Warren, Porter to headline progressive fundraiser supporting seven swing state candidates Hillicon Valley: Facebook, Twitter’s handling of New York Post article raises election night concerns | FCC to move forward with considering order targeting tech’s liability shield | YouTube expands polices to tackle QAnon MORE (D-Mass.) and Bernie SandersBernie SandersGeorgia senator mocks Harris’s name before Trump rally: ‘Kamala-mala-mala, I don’t know’ OVERNIGHT ENERGY: EPA may violate courts with new rule extending life of unlined coal ash ponds | Trump reverses course, approving assistance for California wildfires | Climate change, national security among topics for final Trump-Biden debate Swing-state polls suggest a narrowed path for Trump’s reelection MORE (I-Vt.) to more red- and purple-state Democrats such as Joe ManchinJoseph (Joe) ManchinHarris walks fine line on Barrett as election nears Tom Cotton: ‘No doubt’ coronavirus won’t stop confirmation of SCOTUS nominee The Hill’s Morning Report – Trump, first lady in quarantine after testing positive for COVID-19 MORE (W.Va.) and Jon TesterJonathan (Jon) TesterOvernight Defense: National Guard says no federal requests for election security help | Dems accuse VA head of misusing resources | Army official links COVID-19 to troop suicides Democrats accuse VA head of misusing resources to stump for Trump, vulnerable GOP senators Pendley says court decision ousting him from BLM has had ‘no impact’ MORE (Mont.) for both steps.
But several current members of the caucus have expressed opposition to getting rid of the legislative filibuster, which a growing number of outside activists and Democratic senators worry will be used by Republicans to block major legislative items including health care, voting rights and even coronavirus relief legislation.
“I think the filibuster serves a purpose. … I think it’s part of the Senate that differentiates itself,” Sen. Dianne FeinsteinDianne Emiel FeinsteinOvernight Health Care: Pfizer could apply for vaccine authorization by late November | State health officials say they need .4B for vaccination effort | CDC: Blacks, Hispanics dying of COVID-19 at disproportionately high rates Major abortion rights group calls for Democrats to replace Feinstein on Judiciary Committee Trump says he agrees ‘100 percent’ with ‘lock her up’ chants about Clinton MORE (D-Calif.) told reporters in the wake of the late Justice Ruth Bader GinsburgRuth Bader GinsburgWashington flooded with Women’s March protesters ahead of Barrett confirmation vote Liberals should embrace Trump’s Supreme Court nominee Hypocrisy on the high court: ‘Textualists’ and the Tenth Amendment MORE’s death.
Feinstein sparked progressive ire over her handling of Barrett’s confirmation hearing, including calls from a growing number of organizations for her to step down as the top Democrat on the committee. If Democrats win back the majority Feinstein is in line to become the chairwoman.
But members of the Senate Democratic Conference including Manchin, Kyrsten Sinema (D-Ariz.) and Angus KingAngus KingHopes for DC, Puerto Rico statehood rise Government watchdog recommends creation of White House cyber director position Democrats step up hardball tactics as Supreme Court fight heats up MORE (I-Vt.), who caucuses with Democrats, have expressed opposition to nixing the filibuster, expanding the Supreme Court or both.
“I will do anything and everything I can in a bipartisan way to make this place work,” Manchin said. “I’m going to be bipartisan, and nobody is going to stop me or change me, OK?”
Those senators will face intense pressure from outside groups as well as some of their colleagues to shift their positions if Democrats find themselves in the majority in January. There are already signs of seismic shifts happening within the caucus in anticipation of a win next month, with senators long viewed as unlikely to support systemic reforms now signaling that they are open.
Sen. Chris CoonsChristopher (Chris) Andrew CoonsSunday shows preview: Coronavirus cases surge in the Midwest; Trump hits campaign trail after COVID-19 Key moments from Barrett’s marathon question-and-answer session Five takeaways from Barrett’s Supreme Court grilling MORE (D-Del.), a close Biden ally, co-organized a letter in 2017 defending the legislative filibuster. But he’s since signaled that he’s open to nixing it and, on Sunday, told CNN that he was “not a fan” of expanding the court but was open to increasing the number of justices.
Republicans have seized on the talk of expanding the Supreme Court to try to weaponize the issue in the final weeks of the Nov. 3 election.
Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellLatest Mnuchin-Pelosi call produces ‘encouraging news on testing’ for stimulus package Washington flooded with Women’s March protesters ahead of Barrett confirmation vote McConnell details 0 billion COVID-19 bill set for Wednesday vote MORE (R-Ky.) has accused Democrats of gearing up to throw a “court-packing tantrum that would wreck the judiciary.”
After his Democratic challenger, Amy McGrath, didn’t say if she supported expanding the court during their recent debate, McConnell interjected, “You notice she won’t answer the question. And Joe Biden won’t answer the question either.”
And former Colorado Gov. John HickenlooperJohn HickenlooperDemocratic super PAC pulls remaining ads from Colorado Senate race Democrats see cash floodgates open ahead of Election Day Biden hints at opposition to court packing as pressure builds MORE (D) dodged a question during a recent debate with GOP Sen. Cory GardnerCory Scott GardnerDemocratic super PAC pulls remaining ads from Colorado Senate race Exclusive: Poll shows Affordable Care Act challenge a liability for McConnell at home Climate change — Trump’s golden opportunity MORE (Colo.), who is viewed as one of the most vulnerable incumbents up for reelection this cycle as he fights to hold on in a state won in 2016 by former Secretary of State Hillary ClintonHillary Diane Rodham ClintonBiden camp urges supporters to ‘campaign like we’re trailing’ Censoring the Biden story: How social media becomes state media NYT editorial calls Trump the ‘greatest threat to American democracy since World War II’ MORE.
But several Democratic hopefuls in key races have gone on record against expanding the Supreme Court, underscoring the hole progressives will need to dig out of even if their party controls both the House, Senate and White House next year.
Democratic Senate candidates Mark Kelly in Arizona, Cal Cunningham in North Carolina and Jaime Harrison in South Carolina have all come out against expanding the Supreme Court as they try to unseat GOP Sens. Martha McSallyMartha Elizabeth McSallyRepublicans increasingly seek distance from Trump Democratic super PAC pulls remaining ads from Colorado Senate race Exclusive: Poll shows Affordable Care Act challenge a liability for McConnell at home MORE (Ariz.), Thom TillisThomas (Thom) Roland TillisDemocrats see cash floodgates open ahead of Election Day Supreme Court battle turns into 2020 proxy war Ted Cruz won’t wear mask to speak to reporters at Capitol MORE (N.C.) and Lindsey GrahamLindsey Olin GrahamLatest Mnuchin-Pelosi call produces ‘encouraging news on testing’ for stimulus package Graham: Congress should go ‘big and smart’ on COVID-19 package Oracle CEO donated 0K to Graham Super PAC days before TikTok deal went through: report MORE (R-S.C.), respectively.
Theresa Greenfield, who is trying to unseat GOP Sen. Joni ErnstJoni Kay ErnstSupreme Court battle turns into 2020 proxy war Trump hits road in scramble to shore up support from 2016 Lincoln Project launches ad targeting Republican Joni Ernst in Iowa MORE in Iowa, said during a recent campaign stop that she couldn’t support it, saying that “packing the court with more justices would be too divisive.”
And Sara Gideon, who has expressed doubt about expanding the Supreme Court, went a step further during a debate with GOP Sen. Susan CollinsSusan Margaret CollinsCollins PAC donated hundreds of dollars to two candidates who support QAnon Republicans increasingly seek distance from Trump Democrats see cash floodgates open ahead of Election Day MORE (Maine) on Thursday night, calling for reestablishing the filibuster for court picks.
“How do I think we should get back to an independent judiciary? … We should go back to having a filibuster in place for judicial nominees,” Gideon said during the debate.
Senators can still technically filibuster court picks, but the move is toothless because it requires only a simple majority — the same number needed to confirm a nominee — to break the procedural deadlock. Democrats in 2013 nixed the 60-vote filibuster for lower court picks and executive nominees, and Republicans got rid of the same threshold for Supreme Court nominees in 2017.
The opposition to court packing comes as Biden as well as Speaker Nancy PelosiNancy PelosiLatest Mnuchin-Pelosi call produces ‘encouraging news on testing’ for stimulus package McConnell details 0 billion COVID-19 bill set for Wednesday vote Graham: Congress should go ‘big and smart’ on COVID-19 package MORE (D-Calif.) and Senate Minority Leader Charles SchumerChuck SchumerOcasio-Cortez, progressives call on Senate not to confirm lobbyists or executives to future administration posts The 2016 and 2020 Senate votes are about the same thing: constitutionalist judges Pelosi and Trump go a full year without speaking MORE (D-N.Y.), who will be the majority leader if his party wins in November, have been noncommittal.
Biden, going his furthest on the issue, reiterated during a town hall that he’s “not a fan” of court packing but that he intends to take a position by Nov. 3.
“It depends on how much they rush this,” he said, referring to if Republicans confirm Barrett before the election — something they are poised to do.
Schumer, during an MSNBC interview on Barrett’s hearing, said that Democrats “would certainly be in the constitutional right to do it” but that Republicans were trying to use the issue as a “smoke screen.”
“This idea that Democrats are packing the court, they’ve already done it,” Schumer added. “As for ourselves, what I’ve said is we’re going to win the election, God willing … and then everything will be on the table. That’s all. But we’re not going to fall into the trap of debating that now.”