Dems On High Court Expansion: 'Nothing Is Off The Table'

Law360 (September 23, 2020, 11:05 PM EDT) -- Democrats are gearing up for another bitter U.S. Supreme Court appointment fight, seeking to delay a confirmation vote until after Election Day and suggesting a dramatic response if they fail to do so but gain power next year, perhaps even a court expansion plan that would change the number of justices for the first time since 1869.

Senate Democrats say they're still hoping to delay the replacement of Justice Ruth Bader Ginsburg, who died of cancer complications last week at age 87, by getting four of the 53 GOP senators to agree to put off the final vote until after the election. Only two — Sens. Lisa Murkowski of Alaska and Susan Collins of Maine — have taken that position so far.

Democrats are hoping voter pressure might shift the count. They're appealing to concerns about abortion access and health care, especially during the pandemic. The Supreme Court is scheduled to once again hear arguments about the constitutionality of the Affordable Care Act exactly one week after Election Day.

"We're focused on what we need to do right now to be able to get the four Republicans to join us. Were not naive, we know this is tough," Sen. Debbie Stabenow of Michigan, the chamber's fourth-ranking Democrat, said on a press call Wednesday. "In the next 30 days, we want the public to engage and weigh in about putting a Supreme Court justice on the bench that will support taking away their health care, taking away their ability to make their own reproductive choices as women."

Sen. Tammy Baldwin, D-Wis., said the public pitch would focus on the ACA's best-known benefits: Medicaid expansion that covers millions, young adults allowed to stay on their parents' plans until age 26, and protections for people with preexisting conditions, which could now include COVID-19 and its little-understood long-term effects.

If Democrats fail to sway a few more Republicans, they're expected to deploy tactics to slow the push by Senate Majority Leader Mitch McConnell, R-Ky., to approve President Donald Trump's nominee.

Lena Zwarensteyn of the Leadership Conference on Civil and Human Rights told Law360 on Wednesday that there could be efforts to deny a quorum by boycotting certain Judiciary Committee meetings. There are traditional timelines Democrats could insist on, such as 28 days between receiving a detailed questionnaire from a high court nominee and starting hearings.

Democrats could also deny the unanimous consent required for certain committee meetings or force time-consuming roll call votes on procedural matters, according to Michael J. Gerhardt, a University of North Carolina School of Law professor who has advised Senate Democrats on past Supreme Court nominations.

"Democrats may try to figure out a way to keep any floor vote [until] after Election Day," he told Law360 on Wednesday. "If Trump loses ... I don't know that Democrats can stop a vote, but they can sure as heck make it look bad."

However, the second-ranking Senate Democrat was not hopeful.

"Can we delay it? I don't believe so," said Minority Whip Dick Durbin of Illinois, a longtime Judiciary Committee member. "There are things we can do. … But ultimately, there will be a vote, and the timing of it really is in the hands of Sen. McConnell."

Given the likelihood that a vote will proceed, many progressives have hinted at future action if Democrats win big in this year's elections.

Sen. Ed Markey, D-Mass., argued that McConnell was breaking his own rule of holding open vacancies that occur in a presidential-election year. McConnell, for his part, says he has consistently held that position only applies in a divided government.

"Mitch McConnell set the precedent," Markey tweeted on Friday, soon after Justice Ginsburg died and McConnell vowed to replace her. "If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court."

The top Senate Democrat, Minority Leader Chuck Schumer of New York, has refused to endorse or reject the dramatic change of adding seats to the Supreme Court, which opponents have criticized as court-packing. Schumer's catchphrase is, "Nothing is off the table."

The party's senior Judiciary Committee member, Sen. Dianne Feinstein of California, on Monday told reporters, "Ask me when we win the majority."

If Democrats do win a Senate majority, keep their House majority and win the White House, then they could theoretically pass legislation adding seats; the U.S. Constitution does not set the number of justices, so it would not require a constitutional amendment.

Sen. Tim Kaine of Virginia, the party's 2016 vice presidential nominee, told CBS in August that he would consider court expansion if Republicans filled a vacancy this year, calling it "a statutory option that we have that's fully constitutional in our availability." And House Judiciary Committee Chairman Jerry Nadler, D-N.Y., signaled his support in a tweet Saturday, but only if Senate Republicans confirmed the new justice during a lame-duck session, presumably after a theoretical electoral loss.

Even the Democratic presidential nominee, former Vice President Joe Biden, sounded more open to the idea after previously rejecting calls for court expansion.

"It's a legitimate question," he told a Wisconsin TV station Monday, but he said he wouldn't answer the question because it would "shift all the focus" away from Republicans.

--Editing by Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.

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