Senate Democrats are tamping down talk of expanding the Supreme Court if Republicans fill the seat held by the late Justice Ruth Bader Ginsburg.
Progressive activists and some lawmakers have raised the idea since Ginsburg’s death was announced on Friday night, arguing the party needs to be ready to take bold steps if they have the Senate majority and the White House next year while facing a 6-3 conservative court.
The effort would tie together two controversial ideas: nixing the 60-vote legislative filibuster and then passing legislation to add seats to the Supreme Court, which has been set at nine justices since 1869. But several Democratic senators, including senior members of the caucus, are shooting down the idea altogether or warning that debating it now is a distraction from the fight over Ginsburg’s seat.
Sen. Dianne Feinstein (D-Calif.), who would chair the Senate Judiciary Committee if Democrats win back the majority, is against nixing the legislative filibuster, which would be a necessary first step to adding seats to the court.
“Well, I don’t believe in doing that, I think. I think the filibuster serves a purpose. … I think it’s part of the Senate that differentiates itself,” Feinstein told reporters.
Asked again separately about expanding the Supreme Court, a staffer interjected that Democrats would need to first be in the majority and Feinstein added that “no one’s ever told me that is a reality now.”
Sen. Dick Durbin (Ill.), the No. 2 Senate Democrat, declined to say if he supported expanding the court, saying it was “way too soon,” but warned that he didn’t believe discussing it now was helpful for Democrats.
“You’ll notice it’s the arguments being used by Sen. McConnell on the floor now. We have all these threats of changes in the future if we go ahead with this filling this vacancy. I think we ought to focus on the nominee, that nominee’s beliefs, and what they’re likely to do on the court in the context of the Affordable Care Act,” Durbin said.
What to do about the legislative filibuster has been a point of rolling debate for Senate Democrats as they’ve seen increasing odds that they will win the majority in November.
Supporters of getting rid of the procedural threshold argue that Senate Majority Leader Mitch McConnell (R-Ky.) — who has said he intends to remain the GOP leader even if the party loses the majority — will block key priorities for a Biden administration including health care, climate change and voting rights legislation. Biden has not endorsed eliminating the legislative filibuster or packing the courts.
But the debate was turbocharged by Ginsburg’s death and McConnell’s near-immediate vow that Republicans would hold a vote on the Senate floor this year on whomever President Trump nominates, with supporters claiming that the high court should be expanded to balance out seats that were “stolen” by Republicans since 2016.
Senate Minority Leader Charles Schumer (D-N.Y.) hasn’t taken a public position on either nixing the legislative filibuster or expanding the high court, but he told Democrats during a conference call over the weekend that “nothing is off the table” if Republicans fill the seat.
The debate among Democrats about expanding the Supreme Court has risks for the party because it has quickly been picked up as a talking point by Republicans.
“For some reason they cannot bear to see Republicans governing within the rules … so they threaten to wreck the makeup of the Senate if they lose a vote and wreck the structure of the court if somebody is confirmed whom they oppose,” McConnell said from the Senate floor on Tuesday.
The talking point for Republicans comes after a pair of progressive lawmakers were explicit in their calls to increase the number of justices.
Sen. Ed Markey (D-Mass.) quickly called for Democrats to expand the Supreme Court next year in reaction to McConnell’s decision to try to fill Ginsburg’s seat.
“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court,” Markey tweeted.
House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) separately said that if McConnell tries to confirm Trump’s nominee during the end-of-year lame-duck session, “then the incoming Senate should immediately move to expand the Supreme Court.”
Sen. Patrick Leahy (D-Vt.), asked about the comments from Markey and Nadler, sent a veiled message to the House Judiciary Committee chairman: Stay out of the Senate’s business.
“If that’s what Congressman Nadler is interested in, he should run for the Senate and make the motion,” Leahy said. “I’m not going to tell the House what they should do with their rules. I’m sure he’s got his hands full trying to get things done over there.”
And several other Democrats, from red-state senators to progressives, warned that was the wrong message to be focusing on in the first days of a weeks-long fight over the fate of Ginsburg’s seat.
Sen. Jon Tester (D-Mont.) noted that “some people think that we ought to stick to issues like health care, voting rights.” And Sen. Doug Jones (D-Ala.), who is fighting for his political life in November, argued that it isn’t the “right message.”
“I don’t think we should even be talking about retaliation,” he said.
Progressives, who have appeared open to discussing making reforms to the courts if Democrats win back power in November, warned the party needed to keep the focus on Republicans and the fallout from a 6-3 conservative court.
“I’ve been thinking about court reform for a number of years now and we don’t even get to a serious discussion about it unless the Democrats take back the Senate. First things first, people need to know what is at stake with this nominee. The person will be voting against the Affordable Care Act,” said Sen. Mazie Hirono (D-Hawaii), a member of the Senate Judiciary Committee.
Sen. Elizabeth Warren (D-Mass.), who indicated during her presidential bid that she was open to the idea of adding more justices, added that the Democratic focus for now should be “making clear what’s at stake, and getting everyone in the fight.”
“We need to talk about what’s at stake now,” Warren added, when pressed if talk of expanding the court was a distraction. “What’s at stake in the lives of millions and millions.”