Senate Republicans appear to have the votes.
Though they preached four years ago about how confirming a Supreme Court justice in an election year would be a slap in the face to the American people, enough of President Trump’s henchmen in the Senate have changed their minds to all but guarantee a new conservative justice will join the court — even though the 2020 election is already in progress.
The move is a cold exercise of raw political power, and an affirmation of the president’s contention on Monday that if you control the Senate “you can do what you want.”
Meanwhile, Democrats are crying about hypocrisy and the subversion of norms and everything else that has left them aghast since Trump took office. But with the GOP now sitting on the precipice of remaking the country in a way that could be practically irreversible, the time for moralizing is over. The system is deeply flawed. It’s time to accept this and start leveraging these flaws the way Republicans have for years. If Democrats remain unwilling to do this, the idea of democracy could very well slip into history — replaced by a country where an organized minority rules and the votes of the majority are ignored.
So what exactly can Democrats do, exactly? There aren’t a ton of options, and the ones they may have at their disposal are extreme, at least relative to the world before Trumpism. But that doesn’t mean they aren’t constitutionally legitimate, which at this point is all that should matter. As Trump said on Monday, whoever controls the Senate “can do what they want.” If Democrats win in November, they should take advantage of this reality while they still can.
What can Democrats do before the election is decided?
The short answer: not much.
Republicans have the power to confirm and new justice, and barring some dramatic turn of events — which, granted, have become quite common over the past three and a half years — that’s exactly what they’ll do.
Outside of doing all they can to convince the public of Republicans’ rank hypocrisy and blatant perversion of the constitutional mandate to “advise and consent” on Supreme Court nominees, there are a few procedural steps Democrats could take to make the process more difficult, as Adam Jentleson laid out Monday in The New York Times.
The former deputy chief of staff to longtime Democratic Senator Harry Reid, Jentleson explains Democrats every day have the ability to object to unanimous consent decrees that dictate how the Senate operates. Doing so means the Senate would not be able to convene without 51 members present. If Democrats sit back and force the GOP to supply all of these 51 members, it would prevent some Republican senators in close re-election races from campaigning as much as they’d like, as all but two of them would have to be in Washington to convene the chamber’s business.
Jentleson also suggests the prospect of Democrats boycotting the confirmation hearings for Trump’s nominee. Though this would not prohibit the hearings from taking place, it would send a powerful about the illegitimacy of forcing a justice through while a presidential election is underway. Democrats could then stress that message to voters.
What can Democrats do if they take control of the White House and Congress?
EXPAND THE COURT: There are currently nine seats on the Supreme Court. If Trump’s nominee is confirmed, six of them will be occupied by justices appointed by Republican presidents. Considering GOP presidential candidates have won the popular vote in a presidential election just once since 1988, this isn’t very representative of the American population. Republicans couldn’t care less.
If Democrats want to rebalance the court, they can vote to add seats to it. Though the Supreme Court has held room for nine justices since 1869, the Constitution does not stipulate how many justices should serve. This means Congress could pass a bill to expand the court’s capacity, diluting the influence of individual justices and spreading its ruling power across a wider array of viewpoints. Given the inherent tension between the permanence of lifetime appointments and a nation whose demographics and political attitudes are constantly changing, this would seem to make sense — regardless of the fuckery at hand as the election draws near.
Multiple prominent Democrats have already come out in support for expanding the court after it became clear Republicans intended to jam another justice under the wire, and Senate Minority Leader Chuck Schumer made clear on Saturday that “nothing is off the table.” But Biden has been hesitant to support expansion, at least for now.
“It’s a legitimate question,” the nominee told Wisconsin TV station WBAY on Monday. “But let me tell you why I’m not going answer that question. Because it will shift the focus, that’s what [Trump] wants. He never wants to talk about the issue at hand and he always tries to change the subject.”
But if the Democrats take control of Congress and both chambers agree to expand the court, Biden will be under tremendous pressure to sign off on adding more justices. He could also be swayed should it become evident that a Supreme Court chock full of conservatives will prevent him from enacting his agenda.
ELIMINATE THE FILIBUSTER: If Democrats want to alter the makeup of the Supreme Court, they’re first going to need to eliminate the filibuster. The filibuster requires 60 Senate votes to end floor discussion on certain topics and move to a vote. This effectively means that 60 votes are needed to pass certain legislation, which effectively means that said legislation will never get passed unless a party controls 60 Senate seats.
Democrats are divided on whether to eliminate the filibuster, although sentiment for reform has grown in recent years. While speaking at John Lewis’s funeral in July, President Obama endorsed eliminating the filibuster, arguing it was necessary to pass voting rights legislation. Enthusiasm for the move has swelled along with the possibility of winning control of the Senate, but not everyone is on board. On Monday, Sen. Diane Feinstein (D-Calif.) announced her opposition to eliminating it, drawing criticism from others in the party.
Sen. Feinstein’s protection of the filibuster is unjust & unacceptable.
The filibuster wasn’t made w/ purpose. It‘s the result of an accident in rulebook revision & bloomed as a cherished tool of segregationists.
Now it empowers minority rule. That’s not “special,” it’s unjust. https://t.co/anKwCSbQWb
— Alexandria Ocasio-Cortez (@AOC) September 22, 2020
Lawmakers have been attempting to eliminate the filibuster for just about as long as it has existed, but stakes are as high as ever considering the Republicans will do all they can to block any piece of legislation brought up by Democrats, especially the kinds of forward-thinking measures that will be necessary to tackle generation issues like the climate crisis.
Republicans generally pay lip service to the filibuster, usually on some sort of civic grounds. But from time to time they just say the quiet part out loud: They like it because it helps them achieve their agenda. Here’s Utah Republican Sen. Orrin Hatch in 2017: “I’ve long said that eliminating the legislative filibuster would be a mistake. It’s what’s prevented our country for decades from sliding toward liberalism.”
Throw the filibuster on the pyre.
GRANT STATEHOOD TO WASHINGTON, D.C., AND PUERTO RICO: Representation in the Senate is inherently undemocratic. The 40 million people in California have the same amount of power in the chamber as the 600,000 people in Wyoming. This means, quite literally, that the vote of someone who lives in former far less meaningful than the vote of someone who lives in latter. The fact that this is wrong should not be a controversial issue.
Even worse: the American citizens living in Washington, D.C., and Puerto Rico have no representation in the Senate. None. Correcting this is common sense: Grant each territory statehood and the two senators that come with it. If Democrats gain control of Congress and the White House, they could make this happen. It would likely mean four new Democratic senators.
What about during the lame duck?
As determined as McConnell may be, he might not be able to push a conservative justice through before Election Day, especially if Democrats are able to gum up the works. This could complicate things.
If Biden wins, it will be difficult for McConnell and Senate Republicans to justify pushing someone through. That doesn’t mean they won’t do it, but it would look even worse than if they were to do it before Election Day, and could hurt Republicans up for re-election in 2022 (assuming everyone doesn’t just forget about all of this by February).
They also might not have the votes. So far, only two Republican senators, Lisa Murkowski and Susan Collins, have indicated they won’t vote to confirm Trump’s nominee. But in Arizona, Mark Kelly, a Democrat, is currently leading Martha McSally in a special election, meaning he could be sworn in as early as November 30th. This would put the Republican advantage at 52-48, meaning just one other Republican would need to buck Trump (if Collins and Murkowski hold, which is a big “if”). It’s not out of the question, as the political calculus is certainly liable to change depending on how the election shakes out.