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Republicans’ Supreme Court gambit may backfire. Here’s how.

Democrats can play constitutional hardball, too

- September 23, 2020

Now that Sen. Mitt Romney (R-Utah) has announced President Trump should get to nominate another Supreme Court justice, Senate Majority Leader Mitch McConnell (R-Ky.) appears to have the votes to swiftly confirm whomever Trump appoints to fill the slot left by Justice Ruth Bader Ginsburg’s death.

Democrats have few procedural countermeasures. Short of long shots such as winning over vulnerable or retiring Republicans or stalling Senate business by impeaching Trump or Attorney General William P. Barr, Democrats will probably fail to block confirmation. The Supreme Court would have a strong 6-3 conservative majority.

But if Democrats capture a Senate majority in the November elections, they will have several means of reprisal. Here’s how that might play out.

Constitutional hardball could become the name of the game

Constitutional hardball refers to manipulating lawmaking procedures or norms to advantage one’s own party, particularly in the judiciary or electorate. Hardball lawmaking often entails tit-for-tat. For example, in 2013, Senate Democrats, then in the majority, filled lower federal court seats by eliminating Republicans’ ability to filibuster most judicial nominations. Heading into the 2016 election, Republicans held the Senate majority and refused to consider President Barack Obama’s nomination of Merrick Garland for the Supreme Court. Further, in 2017 and 2018, Senate Republicans banned filibusters of Supreme Court nominees, enabling them to confirm Neil M. Gorsuch and Brett M. Kavanaugh by simple majority votes. Leveraging their power in the Senate, which overrepresents Republicans’ rural constituencies, congressional Republicans have played hardball more aggressively and consistently than have Democrats.

But by pushing through a confirmation vote between now and the next inauguration, McConnell would be violating the rule he articulated just four years ago against considering and confirming a Supreme Court justice during an election year. That may signal to congressional Democrats and their various constituencies that old norms of restraint and bipartisanship have evaporated.

Some Democratic Senate leaders are already calling for hardball should the party retake the Senate and win the presidency. Former Senate majority leader Harry M. Reid (D-Nev.), current Minority Leader Charles E. Schumer (D-N.Y.), and former president Barack Obama have urged consideration of eliminating senators’ ability to filibuster legislative measures. The Senate filibuster rule requires 60 votes to end debate and vote on most measures, which enables the minority party to prevent the majority from passing legislation. Since Democrats are unlikely to win 60 seats in November, passing hardball measures — or even moderate, conventional legislation — would be hard to do with the filibuster in place. Democratic presidential nominee Joe Biden, though known for believing in bipartisan cooperation, recently suggested that given Republicans’ escalating hardball, even he would support abolishing the filibuster. That would enable Democrats to pass a host of other hardball measures.

Trump is running for reelection as a ‘strongman,’ promising protection from anarchy. That might not work.

Judicial hardball might target the courts

The Constitution gives Congress broad authority over federal courts. That offers congressional Democrats several ways to reshape the judiciary. Since the beginning, Congress has periodically expanded Supreme Court and lower court seats, sometimes attempting to do so for baldly partisan reasons. If Republicans confirm a justice before January, Democratic House Judiciary Committee Chair Jerry Nadler (D-N.Y.) recently tweeted he would introduce a bill to expand the Supreme Court. Congress further has the power to reorganize the lower circuit courts that Trump, supported by the Republican Senate, stacked with conservatives. Whether Biden would sign such a bill is unclear.

Throughout U.S. history, Congress has also passed statutes and amendments to curtail the sorts of cases federal courts can consider. For example, the first amendment passed after the Bill of Rights directly reversed a Supreme Court decision and curtailed court jurisdiction over suits against the states. The Constitution also lets Congress impeach Supreme Court justices for poor conduct, although traditionally that’s only done for overt corruption, not for partisan views. Harder to pass and ratify would be a constitutional amendment to limit justices to 18-year terms, perhaps appointed at regular intervals so as to prevent any one president from accidentally being able to stack the court.

What will the Senate do about Trump’s Supreme Court nominee?

Other rounds of hardball could target elections

Following the Supreme Court decision in Shelby v. Holder, an opinion that undermined enforcement of the 1965 Voting Rights Act, Democrats have called for a voting rights act to override the court. A 2019 bill to ease registration and voting cleared the Democratic House only to stall in the Republican Senate. That could be revived.

Further, Democrats could grant statehood to Puerto Rico and the District of Columbia — both of which probably would elect Democratic senators and members of the House. That would help Democrats reliably secure Senate majorities. D.C. statehood bill H.R. 51 easily cleared the House, and an analogous bill could pass a Democratic Senate next year. Such a bill could withstand judicial scrutiny, probably even a nine-member Supreme Court with six conservative members.

If Trump appoints a third justice, the Supreme Court would be the most conservative it’s been in 70 years.

Such measures may seem unconventional. But my research finds members of Congress have often bent procedural rules to admit states on brazenly partisan grounds.

Not all these options are plausible. But threatening or passing even one could expand Democratic power. Simply threatening to consider some of them may be enough, for instance, to cow the court into upholding Democratic measures if challenged. Famously, the threat of a bill or amendment to expand the court may have pushed the Supreme Court to uphold Congress’s New Deal legislation in the 1930s. Current Chief Justice John G. Roberts Jr. seems sensitive to preserving the court’s institutional independence, as might even hard line conservative justices if faced with the threat of being sidelined by Democratic hardball.

If congressional Democrats were to play hardball as the Republicans have, they could match or outdo Republican gains on the Supreme Court.

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Robinson Woodward-Burns (@rwbdc) is an assistant professor of political science at Howard University whose book “Hidden Laws: How State Constitutions Stabilize American Politics” is forthcoming from Yale University Press.