A makeshift memorial outside the Supreme Court yesterday. Photo: Jose Luis Magana/AFP via Getty Images
Furious Democrats are considering total war — profound changes to two branches of government, and even adding stars to the flag — if Republicans jam through a Supreme Court nominee then lose control of the Senate.
On the table: Adding Supreme Court justices ... eliminating the Senate's 60-vote threshold to end filibusters ... and statehood for D.C. and Puerto Rico. "If he holds a vote in 2020, we pack the court in 2021," Rep. Joe Kennedy III (D-Mass.) tweeted.
Why it matters: Democrats are enraged by GOP hypocrisy of rushing through a new justice for President Trump after stalling President Obama's final nominee.
- Dems aren't optimistic about blocking the nominee. But they have many ways of retaliating if they win Senate control — and are licking their chops about real movement on ideas that have been pushed futilely for decades.
- For instance, the Constitution doesn't fix the number of justices, which could be changed by an act of Congress and the president's signature, according to the National Constitution Center.
⚡ On ABC's "This Week," George Stephanopoulos asked Speaker Pelosi about the possibility of impeaching President Trump or Attorney General Barr as a way to stall a Supreme Court confirmation in a post-election lame-duck session.
- Pelosi replied: "Well, we have our options. We have arrows in our quiver that I'm not about to discuss right now."
Senate Democratic Leader Chuck Schumer said on a call with his caucus yesterday, after a moment of silence for Justice Ginsburg:
- If Senate Majority Leader Mitch McConnell "and Senate Republicans move forward with this, then nothing is off the table for next year."
Let's unpack what that means:
- The most controversial of the proposed changes would be adding two more justices to the court. House Judiciary Chair Jerry Nadler tweeted yesterday: "If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session — before a new Senate and President can take office — then the incoming Senate should immediately move to expand the Supreme Court."
- Former Obama Attorney General Eric Holder backed the idea yesterday. When court expansion came up during Democratic primaries last year, Ginsburg said she was opposed.
- At the funeral in July for Rep. John Lewis, President Obama called the filibuster rule — which requires a 60-vote supermajority, instead of a simple majority, to advance legislation — a "Jim Crow relic."
- Trying to turn the federal district into a state would be a constitutional thicket, but Democrats are talking anew about pushing statehood for D.C. and Puerto Rico. Capturing the anything-goes spirit among Democrats amid the Supreme Court fight, one party strategist texted me: "Guam want in?"
The big picture: Many Democrats see the GOP's success at filling the federal judiciary with conservatives after Hillary Clinton's 2016 popular-vote win as a sign that the machine of democracy itself is broken, and they view these structural changes as fixes.
There's lots more Democrats can do if they win control of both the White House and Congress:
- Obama previewed the progressive wish list at Lewis' funeral, including provisions of what Democrats are calling the John Lewis Voting Rights Act: automatic voter registration, "including former inmates who’ve earned their second chance," and making Election Day a national holiday.
- Democratic primary candidate Andrew Yang proposed a constitutional amendment limiting justices to 18-year terms — an idea that resurfaced on MSNBC yesterday.
The other side: Josh Holmes, a former McConnell chief of staff who is president of the public-affairs firm Cavalry, told me:
- "Why would a Republican be the least bit concerned with the threat of something they've already said they're going to do? ... They shot the hostage before the standoff."
P.S. Brian Fallon — executive director of the progressive group Demand Justice and a former top Schumer aide and Justice Department official — distilled the Democratic game plan: