Blood in the Water: Battle over SCOTUS Seat Threatens Future of the Senate

Senator Lindsey Graham (R-SC) was handed over control of the Senate Judiciary Committee at the beginning of 2019, relieving Senator Chuck Grassley (R-IA). It was an immense responsibility to chair the committee responsible for holding the hearings that would confirm or deny President Trump’s Supreme Court pick. Justice Kavanaugh was an easily qualified individual nominated after Justice Kennedy stepped down in the summer of 2018, but the nomination process changed everything. As Sen. Graham famously stated during the Kavanaugh hearings, he would have been embarrassed and ashamed if he had treated the hearings of Justices Sotomayor and Kagan in the manner that his Democratic colleagues treated Justice Kavanaugh.

While it is fair to say that the Supreme Court nomination process has often been contentious in the years past, tracing back to the Reagan’s failed nomination of Robert Bork, the process has become decidedly partisna under the Trump administration. Just around an hour after Justice Ruth Bader Ginsburg passed, Minority Leader Chuck Schumer (D-NY) was already tweeting his opposition to President Trump nominating a replacement. It was nearly the exact same statement that Majority Leader Mitch McConnell (R-KY) had made in 2016 after the death of Justice Scalia.

However, Schumer’s tweet quickly merged into a series of threatening statements from his Democratic colleagues, if McConnell decided to move forward to confirm President Trump’s forthcoming nominee. Sen. Ed Markey (D-MA) similarly tweeted just after the announcement of Justice Ginsburg’s passing, stating that if McConnell moved forward with the confirmation process, Senate Democrats would in a sense extract their revenge by abolishing the filibuster and expanding the Supreme Court.

“If he [McConnell] violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.” –Sen. Ed Markey (D-Mass.)

Markey’s statement was more than an exercise in how many Democratic Senators could point out the perceived hypocrisy in McConnell’s past statements if he moved forward. It was additionally not a plea to preserve the “precedence” and “traditions” of the institution regarding Supreme Court nominations. As conservative commentator Dan Bongino pointed out, precedence only is meaningful when both sides accept that it does. The tweet represented the battle lines being drawn. The stakes of the coming election were already high, but opening of a seat on the Supreme Court elevated the stakes to a frightening level.

Sen. Markey was echoing past statements made by Schumer himself a few weeks prior. Schumer had stated that regarding the elimination of hte filibuster when asked by a reporter, that “nothing is off the table.” Former President Obama, still maintaining an unusually active role for a former president waded into the discussion at the funeral of Rep. John Lewis just this past month. He declared the filibuster to be a “Jim Crow relic”, calling for its removal to clear the fundamental procedural hurdle signature legislation has faced in the Senate.

As many experts in Senate procedure and process have understood, the use of the filibuster to block a vote from proceeding has been a very effective tool for the minority party. If the margin of the majority is slim, it is difficult for the Majority Leader to move towards invoking “cloture”, a rule changed pushed by President Woodrow Wilson in 1917, allowing a two-thirds majority to overrule the filibuster and hold a vote on the legislation. A significant reason for the creation of the Senate and its limited number of members was to foster cooperation. Since in many cases of its history, the margin of the majority party has been decently slim, the use of the filibuster was effective in preventing legislation from being approved forcing compromises, additional discussion, and cooperation between members. Most famously, Democratic senators from the South delayed the passage of the 1964 Civil Rights Act for 60 days, until a cloture vote was invoked. In part due to the impasse, a rule change in 1975 allowed the number of votes for cloture to be three-fifths instead of two-thirds, making the process slightly easier.

Schumer surely understands the history and significance of the filibuster. The No. 2 Democrat in the Senate, Sen. Dick Durbin (D-Il.) certainly does as well, agreeing with Schumer in an interview a few weeks ago that should they retake the Senate in November, Durbin would likely be in favor of abolishing the filibuster. The situation that Schumer and Durbin might expect to unfold is simple. Majority Leader McConnell and Sen. Graham will lead the confirmation process in the Senate, starting in the Judiciary Committee, followed by an eventual vote on the floor of the Senate, barring additional opposition from other GOP members. The nominee would be confirmed most likely after Nov. 3rd and presumably Senate Democrats would win key races in Colorado, Montana, Maine, Arizona, and North Carolina, while Joe Biden takes the White House. Even with Tommy Tuberville winning his race in Alabama, the Dems would have a very slim 51-49 majority. For Schumer, abolishing the filibuster would be one of the most important priorities in order to pass significant legislation beginning in January.

While it is unclear how many other Senate Democrats would support the elimination of the filibuster, the more important question is how the elimination would actually proceed. A simple answer is that it is unlikely, but in a more lengthy sense, it depends on how creative Senate Democratic leadership can be in adjusting the procedural nuance of weakining the filibuster. An article from Molly Reynolds at the Brookings Institution sheds more light on the situation, maintaining that the likelihood of eliminating the filibuster in 2021 is quite low. Collaboration would be necessary on a bipartisan level to support eliminating or weakening the filibuster in some form to pass legislation that was widely agreed upon. Generally, the filibuster is useful for senators on a personal level to hold up legislation to force concessions, while Senate Democratic leadership might be hesitant to weaken a tool that would be essential for them if the Senate majority changed parties in the near future.

The second “threat” that Sen. Markey mentioned regarding “packing the court” has additionally been discussed several times over the past 200 years, with no action. “Packing the court” has generally alluded to the appointment of additional justices to the Supreme Court, which includes a variety of methods in which that would occur. Former Democratic presidential candidate, Pete Buttigieg proposed a 15 member court where 10 of the members would have to unanimously the appointment of the other 5 justices. While not generally supported, many of the Democratic presidential candidates in the 2020 cycle, that included sitting senators, did support term limits on Supreme Court justices.

Historically, threatening to expand the court most famously occurred during 1937, just after FDR won a landslide second term in 1936. FDR was seeking to add additional justices to the court in order to balance out the justices that were opposing a majority of his New Deal legislation. The proposal that would expand the court to 15 failed to gain any additional support even from his own party, with his own vice president, and the Senate Majority Leader rejecting the proposal. Since the New Deal episode, there has not been a serious proposal to expand the court, but with the possibility of Sen. McConnell rapidly moving forward with President Trump’s nominee and confirming before the election, Senate Democrats are feeling threatened.

Schumer did not elaborate on his support for a court packing plan or discuss what that would look like, but he did signal that “nothing is off the table”. Senator Klobuchar (D-MN), a member of the Judiciary Committee also did not elaborate on Schumer’s statements when asked by Chuck Todd on Meet the Press. It appears that for the time being, the radical proposals will be deliberately vague in order to rally all Senate Democrats to fully oppose any effort from McConnell and Graham to bring forth President Trump’s nominee. Regarding the campaign strategy, as advertisements head into the final month, pushing the narrative that the future of the Supreme Court is on the ballot is certainly very impactful to the immigrant population, those that are particularly concerned about their healthcare access, along with minority voters that have experienced difficulty in casting their ballot or feel disenfranchised.

Regardless of the Minority Leader’s true intentions, it is very certain based on precedence that the Senate Democratic caucus will be fully united against President Trump’s nominee. As Sen. Grassley learned in 2018, bitter partisan divide and ugly personal attacks made the confirmation process exhausting, Sen. Graham can only hope that he can hold together the members of his committee. The nominee could certainly be well-qualified, accomplished, and meet the criteria of many legal scholars, but no self-respecting Senate Democrat would dare to support the replacement of the widely praised liberal icon, the late Justice Ginsburg.