The death of Supreme Court Justice Ruth Bader Ginsburg weeks before the presidential election has turned Democratic nightmares into a crushing reality.
Impervious to cries of hypocrisy and pleas to adhere to a standard they set in 2016, Republicans are bulling forward with plans to fast-track her replacement. Liberal hopes that enough GOP senators might stand in the way have been all but dashed with Utah Sen. Mitt Romney’s announcement Tuesday that he supports a vote on President Donald Trump’s eventual nominee.
The confirmation of a new justice appointed by Trump would establish a hard conservative majority on the high court, shifting its balance of power while immediately endangering the Affordable Care Act. The court could also emerge as a reliable mechanism of the right for undermining big ticket legislation passed by Democrats in the future, even if the party wins the presidency and control of Congress.
With that daunting prospect in mind, long simmering conversations on the left over the merit and possibility of abolishing the legislative filibuster, which could pave the way for expanding the number of seats on the Supreme Court and pursuing statehood for Washington, DC, and Puerto Rico, have been elevated into the mainstream. Many top Democrats, including moderates like Senate Minority Leader Chuck Schumer of New York, are repeating a new mantra: “Everything is on the table.”
The momentum behind the push, though, has already run up against the cautious nature of former Vice President Joe Biden, once a long-serving senator and ardent institutionalist who has come out in the past against changing the current rules.
Asked on Monday by a reporter in Wisconsin if he would consider packing the court in a tit-for-tat with Republicans, Biden demurred.
“It’s a legitimate question, but let me tell you why I’m not going answer,” Biden said. “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.”
During the primary, Biden consistently opposed any suggestion that Democrats might expand the court in an effort to restore its partisan balance, suggesting it was a flawed tactic that would only exacerbate the problem it intended to solve. And his campaign has, from the start, hinged on a promise to repair relationships on Capitol Hill – not effectively giving up on them in favor of the hardball tactics that the modern GOP has embraced.
Going forward, Biden’s team is determined to frame the campaign’s central debate on health care and what the seating of a new conservative justice would mean for the future of Obamacare. The court is scheduled to hear a GOP-backed case to strike down the law, including its protections for people with pre-existing conditions, a week after the election.
This past weekend, Biden, in a speech on the Supreme Court fight, excoriated Republicans over what he described as “an exercise in raw political power” before stressing his focus on efforts to defeat the coming nomination through more conventional means. Delaware Sen. Chris Coons, a close confidante, refused to directly address the prospect of court-packing during a Fox News interview on Sunday, suggesting the best path forward for Democrats lies in appealing to their GOP Senate colleagues’ better angels.
The push to abolish the legislative filibuster, which effectively requires a 60-vote supermajority to pass any bill out of the Senate, got a boost from former President Barack Obama, still the party’s most popular and influential figure, when he endorsed it during his tribute to the Civil Rights icon John Lewis, at the late Georgia congressman’s funeral in July.
“If all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do,” Obama said, backing a range of democracy reforms, including new voting rights legislation, statehood for Washington, DC, and Puerto Rico, automatic voter registration and an end to partisan gerrymandering.
Obama’s remarks were a sort of vindication – and stamp of approval – for other Democrats with roots in the party establishment who have been pushing for a more aggressive posture.
Divisions within the party
Brian Fallon, a former top aide to Hillary Clinton in 2016 and the head of Demand Justice, a Democratic group aimed at fighting Trump’s judicial appointments, said that the party needs to realize that victory in November will not “change everything.”
“We have a broken system, so we have to think bigger,” Fallon told CNN. “And all these issues Democrats care about … just winning the election is not going to be enough to make progress on those things.”
And pledging to go big on reforms to the democratic process could be a key to unlocking the current situation.
“Democrats have to create some leverage for themselves,” said Fallon, who has previously worked for Democrats like Schumer and former Attorney General Eric Holder. Republican Senate Majority Leader Mitch “McConnell has the numbers in the Senate. If he wants to be shameless now, he can be.”
Demand Justice has been advocating for expanding the court for years. But Fallon and others believe that the death of Ginsburg, an iconic figure among liberals, will boost popular support.
“RBG’s death was not the cause of calls for things like adding seats to the Senate and adding seats to the Supreme Court and thinking about trying to change the electoral college,” Fallon said, “but I do think it will cause support for them to grow exponentially.”
But other Democrats, including Obama’s former White House chief of staff, are ardently opposed to allowing the debate to intrude on a campaign that Biden, according to nearly every public poll, leads with six weeks until Election Day.
Rahm Emanuel, in an interview Monday night, warned Democrats against focusing on “hypothetical” ideas like expanding the court or imposing term limits on its justices, especially if those conversations risk overshadowing imminent threats to abortion rights and the ACA.
His advice: “Just don’t talk about it.”