The U.S. Supreme Court building in Washington, D.C. (supremecourt.gov)
As it becomes increasingly clear that President Donald Trump and Senate Republicans plan to quickly confirm a Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg, many Democrats are vowing payback — but so far, top Colorado Democrats aren’t among them.
A spokesperson for Sen. Michael Bennet, a Democrat, did not answer directly when asked whether he agrees with calls from some in his party to expand the Supreme Court or take other drastic measures in response to a GOP confirmation, referring instead to a statement issued shortly after Ginsburg’s death, in which Bennet urged the Senate “not (to) confirm a new Supreme Court justice before the election or during a lame-duck session of Congress.”
A spokesperson for former Gov. John Hickenlooper, the Democrat hoping to unseat incumbent Republican Sen. Cory Gardner in November, didn’t respond to a request for comment.
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Within hours of Ginsburg’s death on Sept. 18, Senate Majority Leader Mitch McConnell announced that his caucus would move forward with the confirmation of her replacement, breaking a precedent that Republicans set when they blocked President Obama’s nomination of U.S. Circuit Judge Merrick Garland prior to the 2016 presidential election. Trump said Monday that he would announce a nominee by the end of the week.
Two Republican senators, Lisa Murkowksi of Alaska and Susan Collins of Maine, have said that they won’t vote to confirm a new justice prior to the 2020 election, but at least two others would need to break from McConnell and Trump to block a potential confirmation, and the list of potential “no” votes has rapidly dwindled. After several days of silence, Gardner backed McConnell’s plan on Monday, and Sen. Mitt Romney did the same on Tuesday.
While top Colorado Democrats slam the “hypocrisy and duplicity” of the GOP’s reversal on election-year Supreme Court nominations, a growing chorus of liberal and progressive voices want to see party leadership go further. They’re urging congressional Democrats to embrace a variety of hardball tactics in their fight to oppose the coming nomination, from procedural maneuvers aimed at “grinding the Senate to a halt” to drastic Supreme Court reforms like term limits or additional justices in response to a Republican confirmation.
Lock the door, turn off the machine — whatever it takes from now until then to prevent these monstrous hypocrites from doing exactly the opposite of what they claimed to be doing in 2016.
– Ian Silverii, of ProgressNow Colorado
It’s not just progressive activists who appear open to such ideas. In a conference call with congressional Democrats on Sept. 19, Senate Minority Leader Chuck Schumer warned that
“Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Schumer said, according to Axios. “Nothing is off the table.”
Schumer’s comments followed explicit threats of legislative retaliation from top Democrats including Sen. Edward Markey of Massachusetts and Rep. Jerry Nadler of New York, both of whom expressed support for expanding the Supreme Court if Democrats win a majority in the Senate in November.
“I think it’s telling that Chuck Schumer, of all people, who’s supposed to be the center of gravity for the reasonable, moderate wing of the party, is saying: by any means necessary, everything on the table,” Silverii said.
A spokesperson for the Colorado Republican Party didn’t respond to a request for comment on Schumer’s remarks. While “packing the court” is a controversial, if constitutionally permissible, course of action — President Franklin D. Roosevelt unsuccessfully attempted to expand the court to up to 15 justices in 1937 — some Democrats argue that it’s justified by the unprecedented actions taken by Republicans to steer the courts in their favor.
“I am very sick and tired of watching Republicans play a completely different game when they have power,” Silverii said. “I don’t think Democrats should be willing to completely upend the republic, but we need to start thinking very seriously about tools that are available to us that we’ve chosen not to use.”
For rank-and-file Democrats, the prospect of a 6-3 conservative majority on the nation’s highest court — and what it would mean for abortion access, voting rights, the Affordable Care Act and much more — is motivation enough to support drastic measures.
A new generation of grassroots Democratic activists, led by groups like Indivisible, sprang up in the wake of Trump’s election in 2016, powering a wave of organizing that helped defeat Republican health care proposals and propel Democrats to victory in the 2018 midterms, including in Colorado. Now, as many of these activists stage rallies and plan direct actions to protest an imminent GOP nomination, they want to see Democratic leadership put up a fight, too.
“The people who are actually out there protesting and doing the work, and not just living on social media, recognize that this is a kind of do-or-die time,” said Tania Van Pelt, an activist with Indivisible Denver. “If the Democrats really had some fight in them, this could be an opportunity to say, ‘Yes, by all means nominate Tom Cotton. Nominate a fascist. And what we’re going to do is expand the court, and end the filibuster.’” Sen. Tom Cotton at one point was named as a possible Trump nominee to the Supreme Court.
Even in the event that a Republican nominee is confirmed, however, such measures could be a tough sell for many moderate Democrats — including Bennet, a former 2020 presidential candidate who “slammed his head on the table” when a reporter asked him about expanding the court last year.
Hickenlooper, too, has voiced opposition to expanding the court in the past, telling the Washington Post during his own failed presidential bid that he would be “concerned by the precedent it would set.” But he has expressed openness to other reforms, including the elimination of the legislative filibuster and the admission of the District of Columbia as the nation’s 51st state.
In Saturday’s conference call, Senate Democrats were divided on questions of delay tactics and court-packing threats, the Daily Beast reported. A new poll from left-leaning group Data for Progress found that Americans are split on court-packing, with 40% in support, 39% opposed and 21% undecided.
To some progressive activists, the threat of a solidly conservative Supreme Court that could spend years, or even decades, blocking or weakening legislation on key Democratic priorities represents an opportunity to get moderates and the public at large on board with more radical reforms.
“They’re going to get a radical right-winger on the court, and this is a golden opportunity to really go for it,” Van Pelt said. “You’ve actually got the will of the people. I think at that point, you’re going to have less Bennets, and more advocates for democracy talking really loudly and demanding things. Especially with 40 million people unemployed and on the streets, and no health care, and half the population has no bodily autonomy. At that point, if we have a good opposition party, we have a wedge.”
Silverii acknowledged that court-packing and other similar measures could be divisive and unprecedented. But the stakes of the Supreme Court fight, he argued, are too high — not only for the Democratic Party’s policy goals, but for the future of the country’s democratic system.
“All of this political pontification doesn’t matter at all, because what is at stake here are abortion rights, labor rights, LGBTQIA equality, racial equality … and whether or not we’re going to have an election that’s decided by the voters, and not by a recently rigged Supreme Court,” Silverii said. “We are at an absolute breaking point for the country right now.”
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