As 2020 Democrats charge forward with an increasingly ambitious policy agenda, a couple of bold ideas for implementing it are working their way into the conversation, too: packing the Supreme Court and eliminating the filibuster.
Michael Scherer has a must-read story on the former, which would involve adding Supreme Court justices — rather than waiting for vacancies — to tilt the court to the left. South Bend, Ind., Mayor Pete Buttigieg (D) and Sen. Kirsten Gillibrand (D-N.Y.) have entertained the idea, as did former Obama attorney general Eric Holder last week. (Holder considered running for president but decided against it.)
As for the latter, Washington Gov. Jay Inslee (D), another 2020 hopeful, made a forceful case Sunday for reducing the threshold in the Senate from 60 votes to a majority, and some other prominent Democrats, including Gillibrand and Sen. Elizabeth Warren (D-Mass.), have also entertained it. “We’re not going to get anywhere as long as Mitch McConnell has the keys to the car,” Inslee said, referring to the Republican Senate majority leader.
These ideas are born of a clear and understandable frustration with the glacial pace of legislation when Republicans wielded the filibuster during the Obama years. And as a primary strategy, they make sense. “We’re going to make sure we can actually get things passed and upheld by the Supreme Court,” is an attractive message.
But is the timing right?
Whatever the merits of these ideas, there is a real question about whether Democrats should be telegraphing them right now — at a time when they simply don’t have the power they need to make them happen. In fact, if anything, it would seem Republicans are more likely to gain that kind of control in the coming years. And if they think Democrats are just going to do these things, why not beat them to the punch?
To pack the Supreme Court, Democrats would need control of both chambers of Congress to pass a resolution, as well as the presidency to nominate the new justices. On the filibuster, they would need to control the Senate to change the rules and also the presidency to sign the legislation. They would also probably need the House to pass bills the other two would support.
So far, they have only one of those three levers of power to make these changes worthwhile, while Republicans have two of the three. That means Democrats would need not just to win the presidency in 2020 but also to pick up at least three Senate seats. At this point, the likeliest path if Democrats lose Sen. Doug Jones’s seat in Alabama is that they get pickups in Arizona, Colorado, Maine and North Carolina and hold all of their other territory.
It’s possible Democrats could pull it off in 2020. But the maps are simply more favorable to Republicans and should be for years to come, for a variety of reasons including population sorting and gerrymandering in the House. Fully 60 senators come from states that Donald Trump won in 2016, and the median House district went for Trump by more than three points — all in an election in which he lost the popular vote by more than two points.
Let’s say President Trump is reelected and Republicans somehow win back the House, in 2020 or 2022. Trump has repeatedly pushed for getting rid of the filibuster, but McConnell (R-Ky.) has resisted him. If McConnell sees the Democrats potentially doing it when they return to power, though, what’s the sense in waiting to find out? Why not turn a 5-to-4 conservative Supreme Court into a much more solid 7-to-4 court? Why not get rid of a filibuster that seems unlikely to last past the next time Democrats are in charge? And what better way to overcome objections from within your party than to point to comments from the opposing party that suggest they’ll just do it all when they get the chance?
To be clear, these are still ideas that are mostly promoted by lower-tier presidential hopefuls and not the front-runners. But they seem to be sprouting new life as Democratic frustration grows. And the party and its presidential hopefuls have also shown little will to try to tamp down bold ideas that are gathering support on the left.
But just because something is cathartic or helps you in a primary doesn’t mean it’s smart strategy for the larger battle. Democrats paved the way for Republicans to get rid of the filibuster for Supreme Court nominees when they got rid of it for other nominees in 2013. Trump then won the 2016 election and tilted the Supreme Court by filling two vacancies with fewer than 60 votes. (Republicans might have gotten rid of the filibuster anyway, but Democrats surely made it easier.)
These kinds of things carry unintended consequences when the other side wins elections — which Democrats should be very familiar with.