Politico

'Nothing is off the table': Supreme Court fight could reshape the Senate


The Senate is moving toward a historic showdown that may reverberate for years to come.

The looming battle over President Donald Trump’s upcoming Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg is already turning into an ugly partisan brawl, with Senate Democrats warning they’ll retaliate if they win control of the chamber and White House on Nov. 3.

Even more than the 2018 crisis surrounding Brett Kavanaugh’s nomination to the high court, Democrats say the fallout from Senate Majority Leader Mitch McConnell’s effort to quickly push through a new justice — who could then be confirmed this year by the Senate — could lead to permanent consequences for the institution.

During a Democratic Caucus call Saturday afternoon, Senate Minority Leader Chuck Schumer told his colleagues “everything Americans value is at stake” and warned of possible payback if Republicans fill Ginsburg’s seat before January.

“Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Schumer declared. “Nothing is off the table.”

Schumer also urged the caucus to emphasize the effect filling the vacancy would have on health care, civil rights and other issues.

The once-chummy Senate has sunk ever deeper into bitter partisanship over the years, with each side blaming the other as the culprit. But every time senators think things could not get any worse — after Robert Bork’s failed nomination, or nuking the filibuster on nominations or the sexual assault allegations against Kavanaugh — they soon find the institution can deteriorate a whole lot more.

Some of Schumer’s colleagues and progressive outside groups want the New York Democrat to dismantle the legislative filibuster if Vice President Joe Biden, who has signaled an openness to the idea, becomes president and they win control of the Senate. Schumer hasn’t tipped his hand on the issue, but such a momentous change in Senate rules would end a 200-year-old tradition and make the change more like the House, an institution where the majority always wins.

Other Democrats suggested the party should move to pack the Supreme Court with additional justices in order to dilute the power of the conservative majority. Sen. Ed Markey (D-Mass.) tweeted on Friday that if McConnell moves to fill Ginsburg’s seat this year and Democrats win control of the Senate and the White House, “we must abolish the filibuster and expand the Supreme Court.”

There has even been talk in Democratic circles of having the House impeach any justice placed on the high court by Trump and McConnell’s maneuvers, although it would still take a two-thirds vote by the Senate to remove that person from the Supreme Court. Similar sentiments were floated by Democrats during the Kavanaugh fight but went nowhere.

Sen. Chris Murphy (D-Conn.) said he wasn’t yet convinced that McConnell will garner the requisite 50 votes to move forward with a nomination, but asserted Democrats should “play by the same rules” as Republicans have since taking over the chamber six years ago.

“Every single Senate Republican has a decision to make about what the future of the United States Senate is going to look like,” Murphy cautioned. “I just think they’re pushing the Senate into a very different place — a place where your word means nothing, where honor means nothing, and it’s all about the power politics of here and now.”

And all 10 Democrats on the Senate Judiciary Committee urged the panel’s chair, Sen. Lindsey Graham (R-S.C.), not to consider any nominee for the vacancy until after the next president is inaugurated, citing Republicans’ decision to block Merrick Garland’s nomination to the Court eleven months before the 2016 election. But with Republicans in control of the chamber, there is little Democrats can do to stop a nominee from being confirmed without at least four GOP defectors.

“There cannot be one set of rules for a Republican president and one set for a Democratic president, and considering a nominee before the next inauguration would be wholly inappropriate,” the Democrats wrote.

Senate Republicans and the White House are ignoring the Democrats’ outrage, with GOP leaders expressing confidence in their strategy. McConnell said Friday night that the Senate would hold a vote on Trump’s nominee, though he didn’t specify when. Trump tweeted Saturday morning that Republicans should select a new justice “without delay,” making clear what he expects of GOP senators.

For his part, Graham said Saturday that he “will support President [Trump] in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg,” citing Democratic treatment of Kavanaugh and former Senate Majority Leader Harry Reid’s (D-Nev.) decision to nix the 60-vote threshold for lower court nominees. (McConnell took it a step further and got rid of the 60-vote threshold for Supreme Court nominees in 2017.) Graham had said in 2018, during Kavanaugh’s contentious nomination, that he would “wait until the next election” if a vacancy opened on the high court in the last year of Trump’s presidency this far into the election season.

Sen. Ron Johnson (R-Wis.), who has been leading a partisan investigation designed to politically damage Biden, insisted a confirmation vote before Election Day “shouldn’t have any impact whatsoever” on the institution.

“Could the Democrats become more partisan when it comes to judicial nominees?” Johnson asked. “Democrats will blow it way out of proportion, they will completely politicize this but we have a Republican president, there’s a Supreme court vacancy, there’s a Republican Senate. … A confirmation vote is completely appropriate.”

Some Senate Republicans also argue that Democrats would act no differently.

“I don’t know how it can become more partisan than what it is,” said Sen. Mike Braun (R-Ind.), adding that “if the shoe was on the other foot,” Schumer would put a Democratic nominee on the floor. “I don’t think that it would be any different.”

The spotlight is already shifting to the handful of Republican senators who could decide whether Trump’s pick to replace Ginsburg. Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah will face enormous pressure over the nomination — as will some retiring senators that Trump won’t be able to touch soon. Collins on Saturday said the Senate should not vote on a nominee before the Nov. 3 election and almost immediately caught flak from Trump, who told reporters he “totally” disagrees with her.

The issue is already spilling over into key Senate races in North Carolina and Iowa, with Republicans vowing to support an immediate vote for whomever Trump nominates and their Democratic challengers demanding the Senate hold off until next year.

Sen. Thom Tillis (R-N.C.) vowed Saturday to support whoever Trump nominates without even knowing who that is, a blank check that party leaders will cash shortly.

“There is a clear choice on the future of the Supreme Court between the well-qualified and conservative jurist President Trump will nominate and I will support, and the liberal activist Joe Biden will nominate and Cal Cunningham will support, who will legislate radical, left-wing policies from the bench,” Tillis said in a statement, referring to his Democratic opponent.

Cunningham, in response, noted that early voting has already started in North Carolina, and voters “deserve that opportunity to have their voices heard, and then, it should be up to the next president and next Senate to fill the vacancy on our Court.”

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