Push to expand Supreme Court faces Democratic buzzsaw

A progressive push to expand the Supreme Court is running into an unusual buzzsaw: fellow Democrats.

Calls for Democrats to remake the judiciary are ramping up as Republicans appear poised to put Amy Coney BarrettAmy Coney BarrettGraham reports 'record-breaking' 9M haul during 2020 campaign The Hill's Morning Report - Presented by Mastercard - Dem leaders back smaller COVID-19 relief bill as pandemic escalates Supreme Court sees new requests for religious COVID-19 carve-outs MORE, a sixth conservative justice, on the bench.

It’s a decision that will have decades-long reverberations, progressives warn, unless Democrats make systemic changes to the judiciary next year if they win back the Senate majority and White House in November, something they are feeling increasingly bullish about.


“If Republicans proceed as expected, Democrats will have every right to consider Barrett illegitimate and pursue structural reform to restore ideological balance to the court,” said Brian Fallon, the executive director of the progressive group Demand Justice. 

But supporters of court reforms face an uphill climb even if Democrats find themselves with a trifecta next year for the first time since 2010, when they lost the House in a Tea Party wave.

Top Democrats ranging from Democratic nominee Joe BidenJoe BidenAppeals court OKs White House diverting military funding to border wall construction Federal student loan payment suspension extended another month Pentagon: Tentative meeting between spy agencies, Biden transition set for early next week MORE to congressional leadership have been noncommittal while at the same time, with an eye on keeping the party united heading into Nov. 3, not ruling it out. 

And several rank-and-file Democrats and hopefuls in key races have been cool to the idea even while accusing Republicans of driving the Senate and courts to institutional breaking points by refusing to give Merrick GarlandMerrick Brian GarlandThe five biggest challenges facing President-elect Biden Feinstein departure from top post sets stage for Judiciary fight McConnell pushed Trump to nominate Barrett on the night of Ginsburg's death: report MORE, former President Obama’s final Supreme Court nominee, a hearing or a vote but moving to quickly confirm Barrett. 

“There is no active conversation or deliberation about any changes in court composition,” said Sen. Dick DurbinDick DurbinLawmakers pressure leaders to reach COVID-19 relief deal Congress faces late-year logjam Funding bill hits snag as shutdown deadline looms MORE (Ill.), the No. 2 Senate Democrat and a member of the Senate Judiciary Committee.


The main headache for progressives — beyond getting Biden, a decades-long institutionalist, on board — is the tough math they face that is likely to leave them little room for error and needing nearly every, if not every, vote among Senate Democrats.

Absent a Democratic wave, their margin is likely to be narrow. While FiveThirtyEight, for example, gives the Democrats a 73 percent chance of winning back the Senate, it rates the most likely outcome as a 51-49 split, followed by 52-48 and then 50-50.

Expanding the number of Supreme Court seats would require two steps: nixing the 60-vote legislative filibuster and then passing legislation to change the number of justices from nine. 

If Democrats have a majority capped in the low 50s, that means supporters will need near-unanimous support within a caucus that ranges from progressives such as Sens. Elizabeth WarrenElizabeth WarrenCan Biden find a third way between Trumpism and Obama-era globalism? Left seeks to influence Biden picks while signaling unity Schwarzenegger says he would 'absolutely' help Biden administration MORE (D-Mass.) and Bernie SandersBernie SandersOn The Money: Unemployment gains lower than expected | Jobs report lights fire under coronavirus relief talks Sanders says he can't support bipartisan COVID-19 relief proposal in its current form Progressives push for direct payments to be included in COVID-19 relief deal MORE (I-Vt.) to more red- and purple-state Democrats such as Joe ManchinJoseph (Joe) ManchinSanders says he can't support bipartisan COVID-19 relief proposal in its current form Progressives push for direct payments to be included in COVID-19 relief deal Rubio and Ocasio-Cortez spar on Twitter: 'Work more, tweet less' MORE (W.Va.) and Jon TesterJonathan (Jon) TesterOvernight Defense: Trump loyalist to lead Pentagon transition | Democrats ask VA for vaccine distribution plan | Biden to get classified intel reports Senate Democrats press VA for vaccine distribution plan President is wild card as shutdown fears grow MORE (Mont.) for both steps.

But several current members of the caucus have expressed opposition to getting rid of the legislative filibuster, which a growing number of outside activists and Democratic senators worry will be used by Republicans to block major legislative items including health care, voting rights and even coronavirus relief legislation.


“I think the filibuster serves a purpose. ... I think it's part of the Senate that differentiates itself,” Sen. Dianne FeinsteinDianne Emiel FeinsteinFeinstein pushes for California secretary of state to replace Harris in Senate The Hill's Morning Report - Presented by Mastercard - Dem leaders back smaller COVID-19 relief bill as pandemic escalates Criminal justice groups offer support for Durbin amid fight for Judiciary spot MORE (D-Calif.) told reporters in the wake of the late Justice Ruth Bader GinsburgRuth Bader GinsburgSupreme Court sees new requests for religious COVID-19 carve-outs Cuomo likens COVID-19 to the Grinch: 'The season of viral transmission' For Thanksgiving, the Supreme Court upholds religious liberty MORE’s death.

Feinstein sparked progressive ire over her handling of Barrett’s confirmation hearing, including calls from a growing number of organizations for her to step down as the top Democrat on the committee. If Democrats win back the majority Feinstein is in line to become the chairwoman. 

But members of the Senate Democratic Conference including Manchin, Kyrsten Sinema (D-Ariz.) and Angus KingAngus KingHillicon Valley: Government used Patriot Act to gather website visitor logs in 2019 | Defense bill leaves out Section 230 repeal, includes White House cyber czar position | Officials warn hackers are targeting vaccine supply chain Defense policy bill would create new cyber czar position Leadership changes at top cyber agency raise national security concerns MORE (I-Maine), who caucuses with Democrats, have expressed opposition to nixing the filibuster, expanding the Supreme Court or both.

“I will do anything and everything I can in a bipartisan way to make this place work,” Manchin said. “I’m going to be bipartisan, and nobody is going to stop me or change me, OK?”

Those senators will face intense pressure from outside groups as well as some of their colleagues to shift their positions if Democrats find themselves in the majority in January. There are already signs of seismic shifts happening within the caucus in anticipation of a win next month, with senators long viewed as unlikely to support systemic reforms now signaling that they are open.  

Sen. Chris CoonsChris Andrew CoonsThe Hill's Morning Report - Presented by Mastercard - GOP angst in Georgia; confirmation fight looms Overnight Health Care: Moderna to apply for emergency use authorization for COVID-19 vaccine candidate | Hospitals brace for COVID-19 surge | US more than doubles highest number of monthly COVID-19 cases Bipartisan Senate group holding coronavirus relief talks amid stalemate MORE (D-Del.), a close Biden ally, co-organized a letter in 2017 defending the legislative filibuster. But he’s since signaled that he’s open to nixing it and, on Sunday, told CNN that he was “not a fan” of expanding the court but was open to increasing the number of justices.

Republicans have seized on the talk of expanding the Supreme Court to try to weaponize the issue in the final weeks of the Nov. 3 election.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellOn The Money: Unemployment gains lower than expected | Jobs report lights fire under coronavirus relief talks GOP senators back Christian school's push for COVID-19 carve-out Bipartisan governors call on Congress to pass coronavirus relief package MORE (R-Ky.) has accused Democrats of gearing up to throw a "court-packing tantrum that would wreck the judiciary.”

After his Democratic challenger, Amy McGrath, didn’t say if she supported expanding the court during their recent debate, McConnell interjected, “You notice she won’t answer the question. And Joe Biden won’t answer the question either.”

And former Colorado Gov. John HickenlooperJohn HickenlooperDemocrats frustrated, GOP jubilant in Senate fight Chamber-endorsed Dems struggle on election night OVERNIGHT ENERGY: Down ballot races carry environmental implications | US officially exits Paris climate accord  MORE (D) dodged a question during a recent debate with GOP Sen. Cory GardnerCory GardnerMark Kelly to be sworn in as senator on Wednesday Hillicon Valley: Trump fires top federal cybersecurity official, GOP senators push back | Apple to pay 3 million to resolve fight over batteries | Los Angeles Police ban use of third-party facial recognition software Senate passes bill to secure internet-connected devices against cyber vulnerabilities MORE (Colo.), who is viewed as one of the most vulnerable incumbents up for reelection this cycle as he fights to hold on in a state won in 2016 by former Secretary of State Hillary ClintonHillary Diane Rodham ClintonHillary and Chelsea Clinton to host series based on their book 'Gutsy Women' Democrats see spike in turnout among Asian American, Pacific Islander voters Biden officially announces ex-Obama official Brian Deese as top economic adviser MORE


But several Democratic hopefuls in key races have gone on record against expanding the Supreme Court, underscoring the hole progressives will need to dig out of even if their party controls both the House, Senate and White House next year. 

Democratic Senate candidates Mark Kelly in Arizona, Cal Cunningham in North Carolina and Jaime Harrison in South Carolina have all come out against expanding the Supreme Court as they try to unseat GOP Sens. Martha McSallyMartha Elizabeth McSallyGabby Giffords congratulates Mark Kelly with throwback photo of her own swearing-in Mark Kelly sworn in to Senate seat Sen.-elect Mark Kelly visits John McCain's grave ahead of swearing-in MORE (Ariz.), Thom TillisThomas (Thom) Roland TillisRep. Mark Walker announces Senate bid in North Carolina Grassley returns to Capitol after having coronavirus McConnell halts in-person Republican lunches amid COVID-19 surge MORE (N.C.) and Lindsey GrahamLindsey Olin GrahamGraham reports 'record-breaking' 9M haul during 2020 campaign Lawmakers pressure leaders to reach COVID-19 relief deal Biden: Trump attending inauguration is 'of consequence' to the country MORE (R-S.C.), respectively.

Theresa Greenfield, who is trying to unseat GOP Sen. Joni ErnstJoni Kay ErnstWaPo reporter says GOP has less incentive to go big on COVID-19 relief GOP chairman: Defense bill to include renaming Confederate bases, but not Section 230 repeal Iowa losses underscore Democrats' struggles with attracting rural voters MORE in Iowa, said during a recent campaign stop that she couldn’t support it, saying that “packing the court with more justices would be too divisive.”

And Sara Gideon, who has expressed doubt about expanding the Supreme Court, went a step further during a debate with GOP Sen. Susan CollinsSusan Margaret CollinsThe Hill's Morning Report - Presented by Mastercard - Congress inches closer to virus relief deal Lawmakers pressure leaders to reach COVID-19 relief deal Biden says GOP senators have called to congratulate him MORE (Maine) on Thursday night, calling for reestablishing the filibuster for court picks. 

"How do I think we should get back to an independent judiciary? ... We should go back to having a filibuster in place for judicial nominees," Gideon said during the debate.


Senators can still technically filibuster court picks, but the move is toothless because it requires only a simple majority — the same number needed to confirm a nominee — to break the procedural deadlock. Democrats in 2013 nixed the 60-vote filibuster for lower court picks and executive nominees, and Republicans got rid of the same threshold for Supreme Court nominees in 2017.

The opposition to court packing comes as Biden as well as Speaker Nancy PelosiNancy PelosiOn The Money: Unemployment gains lower than expected | Jobs report lights fire under coronavirus relief talks Hillicon Valley: Senate Intelligence Committee leaders warn of Chinese threats to national security | Biden says China must play by 'international norms' | House Democrats use Markup app for leadership contest voting Bipartisan governors call on Congress to pass coronavirus relief package MORE (D-Calif.) and Senate Minority Leader Charles SchumerChuck SchumerBipartisan governors call on Congress to pass coronavirus relief package Pelosi, Schumer endorse 8 billion plan as basis for stimulus talks Funding bill hits snag as shutdown deadline looms MORE (D-N.Y.), who will be the majority leader if his party wins in November, have been noncommittal.

Biden, going his furthest on the issue, reiterated during a town hall that he’s “not a fan” of court packing but that he intends to take a position by Nov. 3.

“It depends on how much they rush this,” he said, referring to if Republicans confirm Barrett before the election — something they are poised to do.

Schumer, during an MSNBC interview on Barrett’s hearing, said that Democrats “would certainly be in the constitutional right to do it” but that Republicans were trying to use the issue as a “smoke screen.”

“This idea that Democrats are packing the court, [Republicans have] already done it,” Schumer added. "As for ourselves, what I've said is we're going to win the election, God willing ... and then everything will be on the table. That's all. But we're not going to fall into the trap of debating that now."