In the wake of President Trump's announcement that he would nominate a Supreme Court Justice to replace Ruth Bader Ginsburg, a significant number of Democrat lawmakers have called to implement a court-packing strategy if they can take the Senate and White House in the upcoming election.
Rep. Joe Kennedy III, who recently lost the Massachusetts Democratic primary for US Senate, chimed in on Twitter: "If he holds a vote in 2020, we pack the court in 2021. It's that simple.""Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court," Sen. Ed Markey, D-Mass., the progressive stalwart who defeated Rep. Kennedy by 10 points, tweeted.
The strategy of "packing" the Supreme Court with additional justices originated when President Franklin Delano Roosevelt first tried to implement New Deal reforms. The idea has since belonged to the fringes of the party. After Republicans refused to hold hearings for Merrick Garland -- a moderate lawyer nominated by President Barack Obama in 2016 -- because it was an election year, the idea has been brought back into the forefront of liberal policy goals.
Once Trump filled the empty seat with Neil Gorsuch in 2017, Democrats began to view the seat as "stolen". As Trump, with the full support of Republican lawmakers, moves to nominate a conservative justice, Democrats have repeatedly cited Republicans' refusal to hold hearings for Garland in 2016. Republicans, on the other hand, have claimed that when the Senate is controlled by the same party as the White House there is no precedent to hold off on filling the seat. Multiple sources have reported that Sen. McConnell has enough votes to confirm the judge. Notably, Senator Mitt Romney (R-Utah), who voted to impeach President Trump, spoke out in favor of beginning the nomination process.
Prominent Democratic lawmakers, including House Judiciary Chairman Jerry Nadler, have said that Democrats should "immediately move to expand the Supreme Court" if the confirmation occurs during the lame-duck session between Nov. 3 and the inauguration of the winner of the election.
"Filling the SCOTUS vacancy during a lame-duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials. Congress would have to act and expanding the court would be the right place to start," the veteran New York congressman added on Twitter.
What remains to be seen from the Democrats is whether their nominee Joe Biden will back calls to pack the court. Biden spoke out against the idea in 2019, "because we'll live to rue that day." However, many primary candidates, including his running-mate Kamala Harris, signaled openness to the idea of increasing the number of judges on the Supreme Court with a win in November.
Specifically, Democratic congressional leaders have not called for packing the Supreme Court outright, but have implied they are willing to consider radical strategies if Republicans can appoint a justice. According to Sen. Minority Leader Chuck Schumer, D-N.Y., "nothing is off the table" if Republicans attempt to confirm a justice immediately.House Speaker Nancy Pelosi has not discussed court-packing specifically, but on Sunday mentioned impeachment as a possible tactic if Trump moves to fill the seat.
"We have our options. We have arrows in our quiver that I'm not about to discuss right now, but the fact is we have a big challenge in our country," Pelosi stated on ABC News. "This president has threatened to not even accept the results of the election."
Both Schumer and Pelosi's statements brought reproach from the Trump administration."The Speaker threatened to impeach the President -- again -- for simply fulfilling his constitutional obligation," White House Deputy Press Secretary Brian Morgenstern told Fox News. "Numerous Democrats are threatening to pack the court and say things like 'nothing is off the table.' These are bizarre and dangerous power grabs by Democrats who will stop at nothing to erode the Constitution to enact their radical agenda."
Democrats who support the idea of increasing the number of Supreme Court Justices would be at odds with a statement made recently by Justice Ginsberg herself."Nine seems to be a good number. It's been that way for a long time," she told NPR in 2019. "I think it was a bad idea when President Franklin Roosevelt tried to pack the court.""Well, if anything would make the court appear partisan, it would be that," she said. "One side saying, 'When we're in power, we're going to enlarge the number of judges, so we would have more people who will vote the way we want them to.'"