Democratic senators are warning that Republicans will regret confirming Amy Coney Barrett to the Supreme Court as the Democrats face pressure from the left to nix the filibuster and expand the court if they win back the majority.
Democrats are facing calls from their base to enact rules changes and broad systemic reforms after President Trump, who lost the popular vote in 2016, was able to put three justices on the bench, in part because Republicans refused to give Merrick Garland, former President Obama’s final nominee, a hearing or a vote in 2016.
Several Democratic senators warned as part of the chamber’s debate over Barrett that Republicans have lost the right to kvetch if Democrats win back the majority and change the rules. Republicans nixed the filibuster in 2017 for Supreme Court nominees and reduced the debate time in 2019 for lower court and executive picks.
“I know that there’s a lot of speculation … about what Democrats will do if Democrats are given control of the Senate. Will Democrats go to new, extraordinary lengths to maximize their power given the extraordinary lengths Republicans have gone to maximize their power? This is not a conversation that is ripe enough yet, but what do Republicans expect?” asked Sen. Chris Murphy (D-Conn.).
“Do we just unilaterally stand down and not choose to use the same tools that Republicans did in the majority? … I think there are now new rules in the Senate, and I think Republicans have set them,” he added.
Sen. Sheldon Whitehouse (D-R.I.), in a statement after Barrett’s confirmation on Monday night, warned that Republicans might “rue the day.”
“With this vote, my Republican colleagues forfeit their right to call procedural fouls,” Whitehouse said.
Top Senate Democrats haven’t said what they will do if they are back in the majority in January, with Senate Minority Leader Charles Schumer (D-N.Y.) saying everything is on the table as he tries to keep his party unified heading into the Nov. 3 election.
Schumer, however, warned on Monday night that Republicans may have long-term regrets about their strategy.
“The Republican majority is lighting its credibility on fire. … The next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority,” Schumer said.
“My colleagues may regret this for a lot longer than they think,” he added.
Sen. Dick Durbin (D-Ill.), Schumer’s No. 2, agreed that Republicans would “regret the consequences of taking the Senate down this path.”
Majority Leader Mitch McConnell (R-Ky.) sparked progressive furor when he said, during a floor speech, that Democrats wouldn’t be able to undo the party’s work on judicial nominations. In addition to three Supreme Court justices, Trump is second only to former President Carter for the number of overall judges he has gotten confirmed.
“Despite what McConnell may claim from the Senate floor, this isn’t over. If he thinks that we ‘won’t be able to do much about this,’ he should think again. We can and will defeat his disastrous agenda and restore balance to the courts. It all starts on November 3,” Meagan Hatcher-Mays, the director of democracy policy at Indivisible, said in a statement.
It’s unclear if Democrats, even if they win back the majority, would have the votes within their caucus to expand the Supreme Court. In addition to needing to nix the legislative filibuster, they would also need 50 votes for Supreme Court legislation.
But there are signs of shifting within the caucus as Democrats plot their strategy for next year if they find themselves back in the majority for the first time since 2014. Sen. Chris Coons (D-Del.), an ally of Democratic nominee Joe Biden, said earlier this month that he is open to expanding the Supreme Court.
And Sen. Angus King (I-Maine), long viewed as a key swing vote on the issue, hinted during the Senate’s debate that he was open to expanding the Supreme Court, noting that the number of justices is not inscribed in the Constitution.
“Oh, no! Somebody is talking about breaking the rules and packing the court. Well, of course, Article 3 of the Constitution doesn’t establish how many members of the Supreme Court there should be,” King said.
“I don’t want to pack the court. I don’t want to change the 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?” he added.
Biden has not said if he will support expanding the nation’s highest court if elected president but says he’ll appoint a bipartisan commission to study court reforms.