Progressive advocates on Monday demanded that the Democratic Party prove Senate Majority Leader Mitch McConnell wrong about their commitment to ensuring the public's interests are represented by the judicial branch, after the Republican leader all but dared his colleagues to reshape the U.S. Supreme Court should the Democrats win the White House and Senate on Nov. 3.
"McConnell is setting up decades of minority rule by white conservatives and betting that Democrats won't take the bold steps necessary to counter him. It's up to Democrats not just to win, but use their power to prove him wrong."
—Adam Jentleson, Democracy Forward
McConnell said on the Senate floor Sunday that he is pushing through Judge Amy Coney Barrett's Supreme Court confirmation because, regardless of the outcome of the elections, a 6-3 right-wing majority on the court could shape the U.S. in Republicans' favor for generations to come.
"McConnell is clearly betting against the Democrats mustering the resolve to ever alter the structure of the court," Demand Justice co-founder Brian Fallon told NBC News Monday. "Given how far the movement to add seats has already come in just two years, and how likely it is for this 6-3 court to produce rulings threatening progressive priorities, I think it's an unwise bet."
On the Senate floor, McConnell said that while Democrats will be able to undo many of the GOP's so-called "important contributions" from the last four years—including the party's prioritization of corporate interests over struggling families and small businesses during the coronavirus pandemic; its passage of President Donald Trump's tax cuts, which disproportionately benefited the rich; and its refusal to take up legislation passed by the House such as a bill to lower prescription drug prices last year—"they won't be able to do much about [Barrett's confirmation] for a long time to come."
"We've made an important contribution to the future of this country. A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election. Won’t be able to do much about this, for a long time to come.”
— Howard Mortman (@HowardMortman) October 25, 2020
"Challenge accepted," tweeted Fallon's organization in response to McConnell.
McConnell's confidence that Democrats will not consider packing the courts—increasing the number of justices from nine, which was originally proposed by President Franklin D. Roosevelt, who wanted to push older judges to step down by adding a new justice to the high court for every sitting justice who refused to retire after age 70—may stem from Democratic presidential candidate Joe Biden's refusal to seriously consider the measure should he win the election.
Biden said last week after facing numerous questions about the issue that he would "put together a national...bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative" to study the issue of court reform.
"I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack," Biden told Norah O'Donnell on "60 Minutes."
Biden's comments were met with disdain and frustration by Fallon, who called the former vice president's proposal "a punt."
We dont need a commission to tell us that Republicans are about to steal their second Court seat in four years, and that the Court routinely sides with voter suppression tactics that make it harder for Democrats to win elections. This is a punt.https://t.co/v2pkEsmWcM
— Brian Fallon Wants to Add 4 Seats (@brianefallon) October 22, 2020
Demand Justice and other proponents argue that adding justices to the Supreme Court is far from a radical proposal.
"Adding seats is straight-forward and easy," the group's website reads. "The number of justices is not set in the Constitution, so Congress can change it at any time. It has done so seven times throughout American history."
Adam Jentleson of Democracy Forward told NBC that the Republican Party's aim of stacking the high court with right-wing judges like Barrett and Trump-nominated Justice Brett Kavanaugh—who are at odds with the majority of Americans on issues like reproductive rights and the climate crisis—is far more radical than court restructuring.
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"McConnell is setting up decades of minority rule by white conservatives and betting that Democrats won't take the bold steps necessary to counter him," Jentleson told NBC. "It's up to Democrats not just to win, but use their power to prove him wrong."
In the House, progressive Reps. Ro Khanna (D-Calif.) and Pramila Jayapal (D-Wash.) have said in recent days that their Senate colleagues must not shy away from court expansion, particularly after Republicans in recent years have taken control of so much of the judiciary.
Republicans claim that Democrats want to "pack the court?"
They blocked 110 Obama nominees, wouldn't give Garland a hearing because it was an election year, then confirmed 218 Trump judges. Now, they're rushing to confirm Barrett as millions vote.
Who's packing the courts?
— Ro Khanna (@RoKhanna) October 18, 2020
Republicans have been packing state courts for more than a decade. And, majority of justices appointed to federal courts by Trump have been rated unqualified. We need balance back in the courts. Without it, there is no justice. https://t.co/t9Bv8k3yoE
— Rep. Pramila Jayapal (@RepJayapal) October 26, 2020
Some centrist Democratic senators have indicated in recent days that they are open to the possibility of court packing, giving some hope to groups including Demand Justice.
"I don't want to pack the court. I don't want to change that number," said Sen. Angus King (I-Maine). "I don't want to have to do that. But if all of this rule breaking is taking place, what does the majority expect? What do they expect?"
The senator elaborated on CNN Monday.
"The Republicans who are clutching their pearls now about, 'Oh no, don't talk about packing the courts'—in three states...over the last three or four years, the Republicans have packed their courts," King told Alyson Camerota.
Sen. Angus King with the facts: The size of the Supreme Court is not fixed in the Constitution. It's up to the Congress. It's changed seven times over our history. pic.twitter.com/IXmedoT4Vn
— Demand Justice (@WeDemandJustice) October 26, 2020
Senate Minority Leader Chuck Schumer (D-N.Y.) told the press last week that "everything is on the table" should the Democrats take the White House and the Senate next month, while Sen. Chris Coons (D-Del.) told CNN earlier this month that he is "open" to expanding the Supreme Court.
Progressive Sen. Ed Markey (D-Mass.) was more definitive on Monday, tweeting, "We must expand the Supreme Court."
We must expand the Supreme Court.
— Ed Markey (@SenMarkey) October 26, 2020
"Mitch McConnell doesn't think we can fight back to save our courts," tweeted progressive advocacy group Indivisible. "He's wrong. The first step is winning in November."