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The prospect of another gutter fight looms over the latest vacancy. Both parties are ready for it, but Democrats remember how unhappy voters were with their over-the-top attacks on Kavanaugh.
The Republican party holds 53 Senate seats, so can afford to lose only three votes. (Vice President Pence breaks a 50-50 tie.) Their caucus has a few moderates and others who face tough races in ‘purple’ states with centrist voters. But Senator Mitt Romney, a leading anti-Trump Republican, has already come out in support of a vote on Trump’s nominee. Trump and the Senate majority leader Mitch McConnell think they can win — and Trump thinks the fight helps his re-election bid: one reason he’s keen to move quickly.
But Democrats are hitting back hard, saying ‘everything is on the table’ if Trump pushes through his nominee. That’s a threat. To fulfil it, the Democrats need to capture the White House and Senate next month. If they do, they could remove the Senate’s remaining barriers, which allow the minority to block legislation with 40 votes. With that restraint gone, they could pass their entire agenda on taxes, immigration, green energy and more. They could admit new reliably Democratic states — such as -Puerto Rico, for example — to the Union to lock in their Senate majority, and add extra judges to the Supreme Court. The Court has had nine justices since 1869, but there is no fixed constitutional limit.
Democrats threatened to pack the Court in 1937, after Justices struck down much of Franklin Roosevelt’s New Deal legislation. The threat was enough to force the Court to change direction immediately. Its new rulings opened the gates to a much larger, more active central government and a sprawling Washington bureaucracy.
Threats from Democrats don’t intimidate Trump and McConnell. They are going forward with a conservative nominee. If Biden wins and his party takes the Senate, they will have to decide whether to knock down the barriers, ram through their wish list and stack the Supreme Court. The stakes couldn’t be higher.
Charles Lipson is the Peter B. Ritzma Professor of Political Science Emeritus at the University of Chicago.
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