GOP bets Democrats won't expand Supreme Court

Sahil Kapur
·5 min read

WASHINGTON — When Senate Republicans voted on a rainy Sunday to put Amy Coney Barrett on a glide path to a lifetime Supreme Court appointment one week before Election Day, they were making a bet that Democrats wouldn't retaliate and erase conservative gains.

“A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election,” Senate Majority Leader Mitch McConnell, R-Ky., said Sunday after the 51-48 procedural vote against Democratic objections. “But they won’t be able to do much about this for a long time to come.”

The remarks contradicted recent claims by McConnell and politically vulnerable Republicans, like Sen. Thom Tillis of North Carolina and Sen. Joni Ernst of Iowa, who are telling voters in their re-election bids that Democrats will “pack” the Supreme Court if they win.

And progressive activists saw it as a dare to Democrats, who are projected in some polls to win the White House and Congress in the election, enabling them to add seats to the high court with a legislative majority if they're willing to cast aside norms.

“McConnell is clearly betting against the Democrats mustering the resolve to ever alter the structure of the court,” Brian Fallon, a former aide to Senate Minority Leader Chuck Schumer, D-N.Y., who now runs the courts-focused group Demand Justice, told NBC News.

“Given how far the movement to add seats has already come in just two years, and how likely it is for this 6-3 court to produce rulings threatening progressive priorities, I think it's an unwise bet,” he said.

Barrett is slated to become the first Supreme Court justice in the modern era to be confirmed on a partisan vote after Democrats unified against moving forward Sunday and peeled off two Republicans. While it wasn't enough to stop her, many remain furious over the contrast between the speedy process and the Republican block of President Barack Obama from filling an election-year vacancy in 2016.

“I don’t want to pack the court. I don’t want to change that number. I don’t want to have to do that. But if all of this rule breaking is taking place, what does the majority expect? What do they expect?” Sen. Angus King, I-Maine, who caucuses with the Democrats and has a reputation as an institutionalist, said.

Schumer accused the GOP of making a “cynical power grab.”

“It’s a travesty for the Senate, a travesty for the country, and it will be an inerasable stain on this Republican majority forevermore,” Schumer said, telling Americans it would create “a majority on the Supreme Court that threatens your fundamental rights.”

What he didn’t say is how Democrats would respond if they win the power to retaliate. Will they heed the calls from progressives to add seats to the Supreme Court? Pursue other court changes like lifetime limits? Or back off and learn to live with a 6-3 conservative majority?

Democratic Senate candidates such as North Carolina's Cal Cunningham and Iowa's Theresa Greenfield have pushed back on calls to add seats, and focused on opposing a new justice before the election.

'Use their power to prove him wrong'

Democratic presidential nominee Joe Biden has demurred by saying he’d set up a bipartisan commission to study the issue for six months and propose ways to depoliticize the courts. Schumer told a Capitol Hill pool reporter Thursday only that “everything is on the table when we get the majority.”

Democratic operatives say it’s a tricky issue. On one hand, there’s a strong desire among base voters to avenge the replacement of Justice Ruth Bader Ginsburg mere days before an election and the blockade of Obama’s court pick in 2016. But they also don’t want a partisan back-and-forth escalation that leads to Republicans adding still more seats when they return to power.

Asked if he sees McConnell's remarks as a wager that Democrats won't add seats to the court, Mike Davis, who runs the conservative courts-focused Article III Project, said: “Sen. McConnell is not going to negotiate with political extremists.”

One Republican defector in the vote Sunday was Sen. Susan Collins of Maine, who faces a tough re-election race and said her party should follow the standard it set in 2016.

“When the Senate considers nominees to the United States Supreme Court, it is particularly important that we act fairly and consistently, using the same set of rules, no matter which political party is in power,” she said.

The other GOP defector was Sen. Lisa Murkowski of Alaska, who said she opposes the process this close to an election but will vote “yes” on confirmation Monday because she believes Barrett is qualified.

After liberal icon Ginsburg died last month, polls showed most voters wanted to wait until after the election. But recent surveys by Gallup and Morning Consult/Politico asking about an up-or-down vote on Barrett both found 51 percent of Americans saying the Senate should confirm her.

Some progressive fret that Democrats botched the politics by attending the Senate hearings and capping it off with Judiciary Ranking Member Dianne Feinstein, D-Calif., praising Chairman Lindsey Graham, R-S.C., for his handling of the hearings and embracing him upon their conclusion.

“Feinstein’s hug gives the whole thing a strategic incoherence that’s hard to fix,” said Adam Jentleson, a former aide to Senate Democratic leader Harry Reid. Jentleson had called on Democrats to boycott the hearing to protest its legitimacy.

Barrett replacing Ginsburg could mark the sharpest rightward turn on the court since 1991, when Justice Clarence Thomas replaced the civil rights icon Thurgood Marshall, and cement a 6 to 3 conservative majority that is poised to shape American life for generations.

To some progressives, that's a frightening prospect.

“McConnell is setting up decades of minority rule by white conservatives and betting that Democrats won’t take the bold steps necessary to counter him,” Jentleson said. “It’s up to Democrats not just to win, but use their power to prove him wrong.”