The GOP’s rush to fill a Supreme Court vacancy days before the election and their installment of hundreds of conservative judges across the federal judiciary in recent years is quickly changing the attitudes of rank-and-file Democrats who long resisted hardball tactics in the name of a bygone era of comity and bipartisanship in Washington.
That even centrist lawmakers are now opening the door to broad structural reforms to the Senate and perhaps even the Supreme Court ― steps previously only discussed by the left wing of the Democratic Party ― speaks to the highly politicized nature of the chamber under Majority Leader Mitch McConnell (R-Ky.) and his relentless focus on reshaping the federal judiciary for decades to come, norms and rules be damned.
“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?” an exasperated Sen. Angus King (I-Maine) said earlier this week in a noteworthy speech on the Senate floor before Amy Coney Barrett’s confirmation on Monday, which sealed a 6-3 conservative majority on the Supreme Court.
Although King caucuses with Democrats and often votes with them, he has a reputation of working across the aisle on Capitol Hill and steers clear of partisan disputes.
Even Sen. Chris Coons (D-Del.), a mild-mannered senator who’s been called the “GOP’s favorite Democrat” due to his search for common ground, something that has irked progressive for years, now says he’s open to expanding the number of seats on the Supreme Court. If Democrat Joe Biden were to be elected president, “we’ll have to look at what the right steps are to rebalance our federal judiciary,” Coons told CNN recently.
Coons has also come around to reforming the filibuster next year if Democrats win the White House and regain control of the Senate. His evolution on changing the longstanding Senate rule requiring 60 votes for passage of legislation is remarkable given that he was one of its most outspoken defenders.
“I will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn,” Coons, a top ally of Biden, who previously served as the senator from Delaware, said earlier this year.
In 2019, Coons told HuffPost the consequences of getting rid of the filibuster would be “too great,” warning that Republicans could pass a whole host of laws Democrats oppose without it.
The GOP’s flip-flop on confirming a Supreme Court justice during an election year ― something they opposed in 2016 when they denied President Barack Obama’s high court nominee both a hearing and a vote ― also shook Sen. Joe Manchin (D-W.Va.). As one of the last remaining moderates in the Senate, the red-state Democrat voted to confirm both Neil Gorsuch and Brett Kavanaugh to the high court. But he opposed Barrett’s nomination, calling out Republicans for their “hypocrisy in its highest form.”
“The hypocrisy and the unfairness. The decency and the unfairness, that’s all. We’ve never done this ... it divides our country more,” Manchin lamented after the death of the late Justice Ruth Bader Ginsburg.
Republicans insist it was the Democrats who started the judicial wars by blocking George W. Bush’s judicial nominees and changing rules on lower court nominations in 2013. Since then, the GOP unilaterally changed Senate rules three times, which allowed them to confirm over 200 Trump-picked judges to life-time positions.
The GOP also believes “packing” the Supreme Court would undermine its legitimacy and backfire on Democrats politically as it did for Franklin D. Roosevelt when he tried to do it as a way to protect his New Deal legislative agenda.
Polls show the public opposes changing the size of the Supreme Court, suggesting that doing so would be a risky move for Democrats even if they convince enough of their members to get on board. According to a recent HuffPost/YouGov poll, just 27% of voters support packing the court, while 43% oppose such a move. Thirty percent of those polled said they were unsure.
Democratic voters also have mixed feelings about changing the number of seats on the Supreme Court. None listed judicial nominations on their list of top issues ahead of the upcoming election in interviews with HuffPost at several campaign events this week, citing instead the cost of health care, education and the ongoing coronavirus pandemic.
“I don’t want it to be like a race where people are constantly moving the finish line when different people get into office,” said Theron Jamison, 43, who works as a teacher in Columbia, South Carolina. “If they made a particular rule, they should stick with it. If that person is reelected, let them make the decision.”
“I don’t think revenge is the answer,” he added of the judicial fights. “Even though I vote Democrat, I’m on the side of humanity.”
Karen Palmer, 54, a small business owner from Wilkes-Barre, Pennsylvania, told HuffPost she believed what Republicans did to Obama’s nominees was unfair. But Palmer, who is a Biden supporter, said she didn’t support going so far as to pack the court.
“I personally don’t think that the Supreme Court should be expanded. If there’s something else that they could do, I think they should look into it,” Palmer said.
Other Biden supporters, meanwhile, said it was time for their party to take the gloves off and use the same playbook Republicans successfully used stack the judiciary.
“While I’m not for or against it, it may be something that’s necessary,” Cindy Pape, 57, who works for an education company in Plains, Pennsylvania, said of expanding the court. “Democrats have been nice and played by the rules for a long time and done a lot of courtesies within the bipartisan field. I think it’s time to change a little bit.”
Daniel Marans contributed reporting.