Or even more pointedly, what if a vacancy occurs after an election Republicans lose, but before the new Democratic Senate and president take office? Would Senate Majority Leader Mitch McConnell ram through another conservative justice as a last grab at right-wing judicial supremacy?
In May 2019, McConnell was asked what he would do if a seat became open in the last year of President Trump’s term. “We’d fill it,” he said with a smirk, surprising no one. The reason people in the room laughed knowingly was that when Republicans refused to allow President Barack Obama to fill a vacant seat in 2016, they claimed to be following a new principle, that no president should fill a seat in the final year of a term.
In a career of cynical manipulation and disingenuous rhetoric, it was a high point for McConnell; he himself has bragged many times that stymieing Merrick Garland’s nomination “was the most consequential decision I’ve ever made in my entire public career.” That McConnell did it while claiming he was following a “rule” that ought to apply equally to Democratic and Republican presidencies was icing on the cake, not in spite of but because everyone knew he and Republicans who followed his lead were lying through their grinning teeth.
So there is simply no doubt that McConnell would attempt to fill an open seat; if he could, he’d do it even if he had only an hour before the new Senate were sworn in (which will happen the first week in January, a couple of weeks before the presidential inauguration). And there wouldn’t be much Democrats could do about it.
What they could do, however, is retaliate. And as Sahil Kapur of NBC News reports, that’s just what they’re now threatening to do:
[Sen. Tim] Kaine, the party's last vice presidential nominee and a lawmaker with a reputation as an institutionalist, said confirming a nominee of President Donald Trump this year could compel Democrats to consider adding seats to the high court.“If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability,” he said. “I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that.”
You may recall that during the presidential primaries, multiple Democratic candidates expressed an openness to expanding the size of the court, which can be done with legislation. But Joe Biden was not among them. “I’m not prepared to go on and try to pack the court,” he said in July 2019, “because we’ll live to rue that day.”
But at that point, while the debate was deeply affected by the fate of Garland’s seat, it wasn’t about the particular scenario of a last-minute grab of yet another one. Democrats already find the current situation deeply offensive; they’ve won more votes in six of the past seven presidential elections yet conservatives control the court. Make it seven out of eight elections and a 6-to-3 conservative majority, and there would be a revolt in which even those who refused to consider enlarging the court might change their minds.
It’s hard to know whether Democrats like Kaine — who is an institutionalist and careful by nature — would actually be among them, or whether they’re raising the possibility as a bit of gamesmanship, a threat they might not follow through on. Democrats are not always known for their ruthlessness in procedural matters.
But the threat could be enough. Already Sen. Lisa Murkowski (R-Alaska) has said she would oppose filling a seat before the election, as has Sen. Chuck Grassley (R-Iowa). If Grassley didn’t go back on his word (hardly a guarantee), then two more Republicans would be needed to block a move to fill the seat. Both Sen. Susan Collins (R-Maine) and Sen. Mitt Romney (R-Utah) have dodged the question of what they’d do when asked about the possibility.
There were reasonable cases for and against adding seats to the court before now. But the possibility of a lame-duck appointment makes that debate irrelevant, and the person with the power to bring Senate Democrats together on this question is Joe Biden.
He doesn’t have to take a position now, but if the worst happens, he should make it clear that if Republicans fill an open seat, he’ll support adding four new seats to the court, creating a 7-to-6 liberal majority to effectively bring the court to the balance that should have been in place once Garland was confirmed.
Would that be a dramatic move? Sure. But the only way to get McConnell to back down is to credibly threaten him with undoing the project of creating a right-wing judiciary that has meant so much to him. Democratic weakness only emboldens him; sometimes, to get a just outcome, you have to play a little hardball.
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