WASHINGTON — With President Trump vowing to name a Supreme Court nominee this weekend, Senate Democrats on Monday found themselves searching from a narrow, and obscure, list of options as they struggled to find leverage to halt a confirmation before or shortly after Election Day.
Senator Chuck Schumer of New York took to the Senate floor to sum up his quandary: He needs four Republicans to break ranks and block the Senate from approving a Trump nominee.
“There is only one way for us to have some hope of coming together again, of trusting each other again, lowering the temperature, moving forward, and that is for four brave Senate Republicans to commit to rejecting any nominee until the next president is installed,” Schumer said.
But by Monday night, two more key Republicans — Cory Gardner of Colorado and Chuck Grassley of Iowa — made it clear they would not be heeding Schumer’s call, leaving only Susan Collins of Maine and Lisa Murkowski of Alaska as publicly opposed to moving forward before Nov. 3.
As Democrats returned to the Capitol Monday for what could be the biggest partisan brawl of their lives, they reached into their arsenal and found just two weapons: pleas like Schumer’s overture urging Republicans not to proceed, and procedural hurdles that at this point seem unlikely to stop Senator Mitch McConnell, the majority leader who has pushed for a quick confirmation.
The Democrats’ powerlessness and frustration is reviving a once-obscure debate about making sweeping changes to the judiciary and leveling the playing field to erode the institutional advantage that has given Republicans so much power in Washington.
Democrats’ options seem far-fetched and would dramatically escalate the already explosive fight. In the short term, they haven’t ruled out passing a quick House impeachment of Attorney General William Barr in order to clog up the Senate with a trial. “We have arrows in our quiver that I’m not about to discuss right now,” House Speaker Nancy Pelosi said Sunday.
But if McConnell has the votes for the nominee, many observers say there is little the Democrats can do to stop a new conservative justice from being confirmed to replace Ruth Bader Ginsburg in the weeks before or after the election.
“Ultimately, Mitch McConnell and the Republicans do have a lot of power to just trample the procedural rights of Democrats in this process and we are well aware of that,” said Massachusetts Senator Ed Markey.
As they prepare to watch a president who lost the popular vote nominate a third Supreme Court justice, once far-out arguments for abolishing the Senate’s legislative filibuster, adding new states to the nation in order to elect more Democrats, or packing the high court with new justices are quickly picking up speed among Democratic activists. They’re attracting attention even among party stalwarts who have long clung to hoary ideals of tradition and decorum.
Markey is so far the only senator to call directly for expanding the Supreme Court, but when Schumer was asked whether he would support doing so during a press conference on Sunday, he refused to rule it out.
“Once we win the majority, God willing, everything is on the table,” Schumer said. Republicans have a 53 to 47 majority in the Senate but face several difficult races in the November elections.
House Judiciary Committee Chairman Jerry Nadler went further, saying Democrats would have no choice but to add Supreme Court justices if Republicans push their nomination through.
The number of seats on the Supreme Court is not set by the Constitution, and past presidents have changed the makeup of the court with the help of Congress. But the idea has received little attention until recently. Some Democratic presidential hopefuls, including Senator Kamala Harris, now the party’s vice presidential nominee, said during the primary campaign they were open to the idea.
“There’s a lot of discussion that many of us have had — former Hill staffers, scholars — about what’s wrong with the system, including the need for filibuster reform, the need for expanding the court,” said Rebecca Katz, a progressive Democratic strategist.
“In the last 48 hours,” she added, “I’ve heard more of the expanding-the-court conversation than I’ve heard in the last two years.”
Democrats are seething over McConnell’s willingness to confirm a new justice so close to an election when he refused to give so much as a hearing to President Obama’s nominee, Merrick Garland, after Justice Antonin Scalia, a conservative, died nearly nine months before the 2016 election.
But to some Democrats, the need to consider a suite of reforms is driven by what they see as an even larger injustice: The fact that their party is not proportionately represented in the Senate, because Democrats are heavily concentrated in populous states, such as California or New York, that get the same amount of representation as sparsely populated states with more conservative voters.
“The Senate’s pro-Republican bias is at a historic high” said Dave Wasserman, an editor at the Cook Political Report. “The result is minority rule.”
It’s not just the Senate. Trump is president despite losing the popular vote by almost 3 million votes, one of just five times that’s happened in US history. (Another was George W. Bush, also a Republican, in 2000.)
With the Supreme Court on the line, the frustration among Democrats is palpable.
“This is the last gasp of a desperate party that is over-represented in the halls of power,” Senator Elizabeth Warren, the Massachusetts Democrat, said on Monday on a conference call with activists who were advocating for an expansion of the Supreme Court. “It is the last gasp of a corrupt Republican leadership that does not represent the views of a majority of our people or our values as a nation.”
Some Democrats see the prospect of expanding the court as a ray of hope for liberals if Trump manages to get a new justice confirmed, which could cement the court’s conservative majority for a generation. A 6-3 conservative court would be unlikely to approve the legislation that progressives want, including dramatic measures to combat climate change and create a universal health care system.
“There’s a question now of what can Democrats do to stop it, and there’s a question next of what can Democrats do if it does happen anyways,” said Chris Kang, co-founder of the liberal group Demand Justice.
Republicans counter that Democrats are attempting a power grab and would undermine the legitimacy of the court.
Expanding the court is not an option that has been embraced by Democratic presidential nominee Joe Biden. In a speech in Philadelphia on Sunday, Biden asked Senate Republicans — many of them his former colleagues — to act with their conscience and let the next president select Ginsburg’s replacement.
Activist groups including the Sunrise Movement are vowing to immediately push Democrats to expand the court if the party wins the Senate majority.
“I think what you’ll probably see is the pressure becoming insurmountable on the Senate Democrats,” said Zina Precht-Rodriguez, the deputy creative director for Sunrise.
Other changes, such as statehood for Washington, D.C., and Puerto Rico, have already garnered high levels of support within the party.
And even Biden, a longtime senator and a committed institutionalist, indicated earlier this summer that he could be open to abolishing the legislative filibuster — a procedural maneuver that allows one senator to hold up legislation unless 60 members vote to end it — which a growing number of Democrats say will be necessary to pass meaningful legislation on climate and other issues if they win the Senate back.
“There really is no time left for Congress to fiddle around,” said Representative Andy Levin of Michigan.