It’s been five days since Ruth Bader Ginsburg died, and Senate Majority Leader Mitch McConnell (R-Ky.) already appears to have the votes to confirm President Donald Trump’s pick to replace her on the Supreme Court this year.
There isn’t even a nominee yet. Based on what Trump has said, he’ll name a woman, she will be hostile to the Affordable Care Act and she will support overturning Roe v. Wade. If confirmed, Trump’s nominee will tilt the court to a 6-to-3 conservative majority.
It’s a grim prospect for progressive judicial advocacy groups. And the reality is there’s not much they can do to prevent Republicans from confirming Trump’s nominee. It’s just math. McConnell can afford to lose three GOP senators and still get Trump’s nominee through. There are only two, Lisa Murkowski (Alaska) and Susan Collins (Maine), who have said they won’t vote to confirm anyone this year. Democrats were hoping GOP Sens. Mitt Romney (Utah) and Chuck Grassley (Iowa) would join them, based on previous statements they’ve made, but both support moving forward.
Still, progressive judicial groups insist McConnell’s plan isn’t a done deal, and they have a strategy coming into focus: Fight the process every step of the way, and make it crystal clear to the American public that health care, women’s reproductive rights, voting rights and the legitimacy of the Supreme Court are all at stake with this confirmation.
“We’re going to fight tooth and nail to prevent Trump from filling this seat in the first place,” said Zack Ford of Alliance for Justice Action Campaign. “Then we’re going to fight tooth and nail to flip as many Republicans as possible to keep this nominee from getting confirmed. Then we’re going to fight tooth and nail, if Democrats get some power back in the election, to undo the damage, however possible.”
“It’s all about preparing for every eventuality ― how do they rush this, what happens at the hearing, what happens in the floor vote ― looking at every single opportunity to say: What can we achieve as they try to plow forward?” Ford added.
Groups have already begun mobilizing their networks nationwide. They’re hosting calls with Democratic senators pledging to fight. They’re organizing online and in-person events with speakers from various civil rights and advocacy groups. They’re circulating polls showing that most Americans prefer to let the winner of the November election fill the Supreme Court seat.
They’re also planning to spend money pressuring specific Republicans to defect as the process goes forward. They’ve got their eyes on vulnerable GOP senators up for reelection, such as Cory Gardner (Colo.), Martha McSally (Ariz.) and Thom Tillis (N.C.).
“It’s important to note from the start that people have already started voting for the president and their senators,” said Lena Zwarensteyn, director of the Fair Courts Campaign at the Leadership Conference on Civil and Human Rights, a coalition of more than 220 national civil rights groups.
“We know exactly who Trump will nominate because he’s already explained his litmus test,” she said. “These are people who will threaten health care, who will threaten Roe v Wade, who will put voting rights on the line. I think Senate Republicans know that. The pressure is on them.”
Demand Justice is spending $10 million to prevent Trump from filling the Supreme Court seat this year, and much of that money will target Republicans in key states, said a spokesperson for the group. Democrats argue the seat shouldn’t be filled until after Inauguration Day, when Joe Biden may be in the White House.
Chris Kang, chief counsel at Demand Justice, said progressive outrage has been off the charts since McConnell announced his plan to quickly fill Ginsburg’s seat. That energy was palpable over the weekend, he said, when the group co-hosted a vigil on the steps of the Supreme Court. Seven thousand people turned out, along with 400,000 people online.
Like other progressive advocacy groups, Demand Justice saw a huge spike in fundraising over the weekend, too ― more than it has raised in two years.
“So much of the focus is on the Republican hypocrisy, but it’s not the most important argument here,” Kang said. “The Affordable Care Act is on the line. They want to strip away protections from millions of people with preexisting conditions.... I think that energy and enthusiasm is what is going to make this fight very different than other Supreme Court fights.”
It’s also crucial that people understand what McConnell’s rushed confirmation vote means for the Supreme Court itself, said former Sen. Russ Feingold (D-Wis.), who now leads the American Constitution Society, a left-leaning legal advocacy group.
“What we have to do, as difficult as it may be, is make it clear this isn’t about Democrats versus Republicans or stopping Trump,” Feingold said. “This is about the fact that one of the most important institutions in our country, the U.S. Supreme Court, is being compromised and made illegitimate.”
Republicans are systematically “poaching” the court, Feingold said. They denied President Barack Obama a Supreme Court nominee in 2016, he said, and now they’re denying a potential President Biden a say in filling the vacant seat by rushing through a Trump nominee right before the election, an unprecedented move.
“The actual institution of the court, which already was under a gray cloud because of the Bush v. Gore decision and Citizens United, is about to descend into one of its worst periods in American history,” Feingold said.
If Republicans do confirm Trump’s nominee this year, progressive groups say it opens the door for Democrats to move forward with structural changes to the Senate and the Supreme Court as a consequence, the next time Democrats retake control of the Senate and White House. That could happen in November.
“All of the options, as [Senate Democratic Leader Chuck] Schumer has said, are on the table,” Ford said.
Advocacy groups have been pushing Democrats for reforms like adding more seats to the Supreme Court and getting rid of the Senate filibuster for legislation, which would allow the majority party to pass bills with just 51 votes instead of 60. There is also some momentum for expanding statehood to Washington, D.C., and Puerto Rico, which would give each of the Democratic strongholds two senators and a voting member of Congress.
These are all dramatic institutional changes that have floated around in advocacy circles for years but haven’t gained much traction among Democratic officials. There are plenty of Senate Democrats who are uncomfortable with the idea of pledging to get rid of the filibuster, for example, because they worry that it telegraphs to McConnell what he should do if Biden loses in November.
Recently, though, some Democrats have signaled that they would support major structural reforms, depending on how Republicans proceed with the Supreme Court confirmation.
House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) tweeted last week that Democrats should “immediately” move to expand the Supreme Court if Biden wins in November but Republicans still vote to confirm Trump’s nominee in the lame-duck session. Sen. Ed Markey (D-Mass.) went further, tweeting last week that Democrats should nix the filibuster and add more Supreme Court seats if Republicans move forward with confirming Trump’s nominee this year.
Even Biden, for the first time ever, suggested in July that he is open to getting rid of the filibuster, depending on the level of defiance from Senate Republicans in a potential Biden administration. But advocates’ push on the issue is largely unrelated to Biden, who hasn’t discussed the Supreme Court that much.
Feingold, who served in the Senate for 18 years, said it is “perfectly understandable” that progressives are pushing for structural reforms in light of the circumstances. Still, he urged advocates to stay focused on the matter at hand: preventing Senate Republicans from confirming a Supreme Court nominee until January and from treating the Supreme Court as a political tool.
“Our system cannot absorb that,” he added. “When somebody like Mitt Romney is already saying he’s on board before he even knows who the nominee is, something pretty twisted has happened to the Constitution.”