Here are three takeaways from the Senate’s swift — and contentious — elevation of Barrett.
Senate majorities can move fast if they stick together
It took only 27 days for the GOP-led Senate to confirm Barrett. On average, over the last four decades or so, it has taken the Senate just over two months to reach a confirmation vote. More dramatically, of the 22 Supreme Court nominees voted on by the Senate during a presidential election year — reaching all the way back to 1789 — Barrett’s confirmation came closest to Election Day: a mere eight days, with millions having already voted.
The rules of the game — set most recently by Republicans’ 2017 “nuclear” move that eliminated filibusters of Supreme Court nominees — greased the skids for the Senate GOP to rush Barrett’s confirmation. That empowered a cohesive majority to cut off debate and move swiftly to a confirmation vote. At least, it came “swiftly” in Senate terms, since the body’s rules impose a 30-hour wait between cutting off debate and a final confirmation vote for Supreme Court nominees.
Equally important was Senate Republicans’ near-perfect unity that enabled them to cut corners. For example, in pushing Barrett’s nomination to the floor last week, Senate Judiciary Committee Republicans bypassed their own rule requiring two members of the minority party to be present to transact committee business. Facing a united GOP, Democrats had no power to contest the rule’s infraction in any meaningful way.
What’s more, Republicans treated Election Day as a hard deadline. Many Republican senators, such as Judiciary Committee Chair Lindsey O. Graham of South Carolina, viewed Barrett’s confirmation as critical to their ability to win reelection. Judging from GOP Senate electoral gains after they confirmed Brett M. Kavanaugh in 2018 after very heated hearings, Republicans again believe adding another conservative to the bench would help inspire red state supporters to show up at the polls. Of course, swiftly replacing liberal icon Ruth Bader Ginsburg with Barrett — viewed by Democrats to be far to the right of the judicial mainstream, and as outrageous hypocrisy after the Senate refused to consider President Barack Obama’s February 2016 nomination of Merrick Garland — may also be fueling a Democratic backlash.
Democrats could struggle to rebalance the court
Senate Majority Leader Mitch McConnell (R-Ky.) on Sunday made plain his party’s motivations for speeding Barrett to the bench. “We’ve made an important contribution to the future in this country. A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election. [Democrats] won’t be able to do much about this, for a long time to come.”
McConnell acknowledged if and when Democrats win back control, they can undo much of what the GOP Senate achieved under Trump. Cementing what could be an ultraconservative judicial supermajority could ensure conservative policy for decades, especially since Trump’s three appointees are young for the lifetime appointments, ranging in age from 48 to 53. A stacked court will make it harder for Democrats to rebalance the bench — unless they’re willing to pursue new ways to curb the court, such as expanding the number of justices or pursuing term limits.
Control of the court matters for both parties. That is especially true for Republicans, given the importance to their conservative base of overturning Roe v. Wade, challenging same-sex marriage, and propping up gun owners’ rights, among other issues. Both parties have deployed what is called the “nuclear option” and other parliamentary moves aimed at empowering ambitious majorities in confirming favored nominees.
Will Democrats play hardball, too?
During the past decade, many observers have suggested that, more and more, the parties are playing “constitutional hardball” — snatching victories in ways technically permitted under prevailing rules and practices, but doing so using “bad faith” moves that undermine democratic norms. In constitutional hardball, a party’s or coalition’s tactics or strategies aims at entrenching its power far into the future, even if it loses majority support.
Prominent legal scholars have been arguing that the parties play hardball asymmetrically: Democrats play hardball, but less frequently and intensely than do Republicans. True, it’s tough to systematically test that empirically. But the GOP rush to confirm Barrett — after blocking Merrick Garland, and with Democrats apparently leading the race for the White House and Senate — has increased pressure on Democrats to retaliate in kind. Robinson Woodward-Burns explored in TMC some salient ideas for how Democrats might do so.
To succeed, Democrats would need to win control of both houses of Congress and the White House. Senate Democrats would probably need to deploy the biggest nuke of all: getting rid of the legislative filibuster entirely. Currently, filibusters can only be ended with 60 votes out of 100. Getting rid of it would enable whichever party controls the chamber to cut off debate on any measure or motion with a simple majority.
But the more robustly the Democrats win the Senate, the more diverse their senators would probably be. If, for example, centrist Democrats win Senate races in Montana, Colorado, and North Carolina, would they be willing to risk their seats to eliminate the filibuster? Whether Democrats would be willing to play GOP-like hardball — and what issue would sufficiently rally them to the field — remains to be seen.