Bitter fight over Barrett fuels calls to nix filibuster, expand court

The fallout from Justice Amy Coney BarrettAmy Coney BarrettMcConnell, GOP slam Biden's executive order on SCOTUS Progressives give Biden's court reform panel mixed reviews Top GOP super PAC endorses Murkowski amid primary threat MORE's confirmation fight is fueling calls for Democrats to nix the filibuster and expand the Supreme Court next year if they win back the Senate majority and the White House.

The long-simmering debate over the seismic changes is gaining new steam amid deep frustrations about the state of the Senate, which has been battered by a slew of explosive fights in recent years that have ratcheted tensions to an all time-high.

Supporters of adding court seats and eliminating the filibuster argue that Barrett’s confirmation fight — which came four years after Republicans refused to give Judge Merrick GarlandMerrick GarlandBudget tasks DOJ with turnaround of policing, voting rights, hate crimes Progressive group ramps up pressure on Justice Breyer to retire The Hill's Morning Report - Biden assails 'epidemic' of gun violence amid SC, Texas shootings MORE a hearing or a vote — lays the groundwork for Democrats to enact rules and structural changes.


“We’re not getting anything done if the legislative filibuster is in place. It has to go, it should go on day one,” said Meagan Hatcher-Mays, the director of democracy policy at Indivisible. “We are thinking of this fight — for the courts and the fight for our democracy — as two parts of the same fight.”

Progressives in both the House and Senate have doubled down on their calls for Democrats to expand the court after Barrett’s confirmation.

“Republicans have been packing the Supreme Court for years. It’s our job now to expand the court and return justice to the judiciary,” Sen. Ed MarkeyEd MarkeyHillicon Valley: Supreme Court sides with Google in copyright fight against Oracle | Justices dismiss suit over Trump's blocking of critics on Twitter | Tim Cook hopes Parler will return to Apple Store Democrats press Facebook on plans for Instagram for kids Give Republicans the climate credit they deserve MORE (D-Mass.) tweeted Tuesday.

Rep. Alexandria Ocasio-CortezAlexandria Ocasio-CortezNew York City's suicide mission should alarm the entire nation Marjorie Taylor Greene rakes in over .2M in first quarter The strategy Biden needs to pass his infrastructure plan MORE  (D-N.Y.), who has garnered chatter as a potential primary challenger to Senate Minority Leader Charles SchumerChuck SchumerThe first Southern state legalizes marijuana — what it means nationally H.R. 1/S. 1: Democrats defend their majorities, not honest elections McCarthy asks FBI, CIA for briefing after two men on terror watchlist stopped at border MORE (D-N.Y.) in 2022, called for Democrats to “expand the court,” adding in a tweet that Republicans “don’t believe Dems have the stones to play hardball like they do.”

Democrats have been careful not to say what they will do if they are in the majority next year, arguing that with the election looming, the discussion isn’t yet ripe. But they warned that the fight over Barrett’s nomination is making them rethink how the Senate functions as an institution.

“Democrats are going to have to wrap their mind around what has happened, because we can’t be the only ones showing any restraint. Right, because that’s just a recipe for getting rolled and rolled and rolled, and that's a recipe for entrenching minority rule. ... So something has to give,” said Sen. Brian SchatzBrian Emanuel SchatzGeorgia law makes it a crime to give food, water to people waiting to vote Senate Democrats reintroduce bill to create financial transaction tax GOP lawmaker introduces bill targeting tech liability protections MORE (D-Hawaii).


Sen. Chris MurphyChristopher (Chris) Scott MurphyPassage of FASTER Act is critical for food allergy community Sunday shows: Biden's border woes, gun control dominate Murphy, Toomey say background check bill could pass Senate MORE (D-Conn.) added, “I think there are now new rules in the Senate, and I think Republicans have set them.”

The fallout from Barrett’s confirmation comes as the Senate has already been bruised in recent years by rules changes, increased polarization and Justice Brett KavanaughBrett Michael KavanaughColbert mocks Gaetz after Trump denies he asked for a pardon Meghan McCain calls on Gaetz to resign Gaetz defends himself: I'm 'not a monk' MORE’s confirmation, easily the most explosive fight over a Supreme Court nominee in the last 30 years.

Republicans say nixing the filibuster is not the solution.

“To do that would inflect even deeper, deeper wounds, fundamentally and dramatically altering how the levers of power operate in this country. ... So we’ve got to figure out how to de-escalate,” said Sen. Lisa MurkowskiLisa Ann MurkowskiTrump looms large over GOP donor retreat in Florida Top GOP super PAC endorses Murkowski amid primary threat Biden-GOP infrastructure talks off to rocky start MORE (R-Alaska), adding she was “frustrated” by the state of the Senate.

Sen. Lamar AlexanderLamar AlexanderSenate GOP faces retirement brain drain The Hill's Morning Report - Presented by the National Shooting Sports Foundation - CDC news on gatherings a step toward normality Blunt's retirement deals blow to McConnell inner circle MORE (R-Tenn.), a close McConnell ally who is retiring at the end of the 116th Congress, added that the Senate needed a “change in behavior more than we need a change in rules.”

But Barrett’s confirmation dropped a bomb into an ongoing debate among Democrats about how big they should go next year if they have control of both Congress and the White House.

Supporters of nixing the 60-vote legislative filibuster argue it stands in the way of some of the biggest priorities for Democrats, including health care, voting rights, climate change and potentially even another round of coronavirus relief.

Eliminating the filibuster is also at the heart of the debate over expanding the Supreme Court, which would require passing legislation through both chambers and getting a signature from the president.

Democrats would need 50 votes in the Senate to go “nuclear” and lower the legislative filibuster without GOP support. If it remains intact, Democrats would need to win over several Republican senators to round up the 60 votes needed to pass most legislation.

Democratic leadership hasn’t ruled anything in or out if they control the Senate next year as they try to keep their caucus unified ahead of the November election.

But Schumer warned that Republicans have lost their right to kvetch about how Democrats might run the chamber.

“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.


It’s unclear if Democrats will have the necessary votes, and a razor thin margin could complicate their strategy. When Democrats nixed the filibuster for certain nominees in 2013, the party had a 55-45 majority. By comparison, FiveThirtyEight estimates that a 51-49 Democratic majority is the most likely outcome for 2021.

In 2013, three Democratic senators voted against lowering the 60-vote threshold for executive, district court and appeals court nominations; of the three only Sen. Joe ManchinJoe ManchinClose the avenues of foreign meddling Democrats see political winner in tax fight MSNBC's Joy Reid pans Manchin, Sinema as the 'no progress caucus' MORE (D-W.Va.) is still in the Senate. Of the 47 members of the Democratic caucus today, 36 were senators in 2013 and voted to use the nuclear option.

Republicans have seized on the debate among Democrats about nixing the filibuster and expanding the Supreme Court to try to squeeze candidates in key battleground states. Democratic presidential nominee Joe BidenJoe BidenBiden eyes bigger US role in global vaccination efforts Trump says GOP will take White House in 2024 in prepared speech Kemp: Pulling All-Star game out of Atlanta will hurt business owners of color MORE, a long-time institutionalist, has not said whether he supports nixing the legislative filibuster and expanding the court. Instead, he’s set up a court reform panel.

But there are signs of significant shifts within the Democratic caucus toward making changes to the structure of the Senate and the courts.

“I genuinely think that Ruth Bader GinsburgRuth Bader GinsburgProgressives give Biden's court reform panel mixed reviews Biden will let Breyer decide when to retire, aide says Biden establishes commission to study expanding Supreme Court MORE’s passing away and the way that Mitch McConnellAddison (Mitch) Mitchell McConnellHarry Reid reacts to Boehner book excerpt: 'We didn't mince words' Democrats see opportunity in GOP feud with business Biden resists calls to give hard-hit states more vaccines than others MORE decided to kind of run up the score … really seems to have radicalized some Democrats that I guess I never would have thought would be radicalized,” said Hatcher-Mays.

Sens. Jon TesterJonathan (Jon) TesterThe Hill's Morning Report - Biden's infrastructure plan triggers definition debate Lawmakers say fixing border crisis is Biden's job Five things to watch on Biden infrastructure plan MORE (D-Mont.) and Angus KingAngus KingGroups petition EPA to remove ethane and methane from list of compounds exempt from emissions limits Lack of cyber funds in Biden infrastructure plan raises eyebrows Five things to watch on Biden infrastructure plan MORE (I-Maine) — long viewed as crucial swing votes on nixing the filibuster — have signaled they are open to it if Republican obstruction makes it impossible for them to pass legislation.


King and Sen. Chris CoonsChris Andrew CoonsFive takeaways from Biden's first budget proposal The Hill's Morning Report - Biden assails 'epidemic' of gun violence amid SC, Texas shootings Biden-GOP infrastructure talks off to rocky start MORE (D-Del.), who are viewed as institutionalists, have also opened the door to expanding the Supreme Court if Democrats are back in power next year.

“We’ve got to have a wide open conversation about: How do we rebalance our courts?” Coons said during a recent interview with MSNBC. “We’ve got to look at our federal courts as a whole.”

King, during a floor speech that caught the attention of progressive advocates, accused Republicans of “pearl clutching” on the issue of expanding the Supreme Court.

“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, what do they expect?” he asked.

Pointing to King and Coons, Hatcher-Mays argued that Senate Majority Leader Mitch McConnell (R-Ky.) and Republicans have “overplayed their hand” with Barrett’s confirmation.

“All anybody is talking about right now is fixing the problem that Republicans created,” she said. “There’s nothing radical about Democrats saying elections have consequences and if we win, we’re going to fix the problem.”