There’s a reason Democratic leaders aren’t leaning into the possibility of adding judges to the Supreme Court: they might not have the votes to do it.
A growing number of Democratic candidates in competitive Senate races say they are unlikely to support expanding the court as retribution for President Donald Trump and Republicans’ plan to quickly fill the vacancy created by Justice Ruth Bader Ginsburg’s death. And that could hamstring Democratic Leader Chuck Schumer’s potential majority from following through on liberals’ most explosive threats.
“I'll evaluate any proposals based on whether they'll help us return the judiciary to an independent body free from politics. At this time, I have doubts that expanding the Supreme Court would do that,” said Maine Democrat Sara Gideon, who’s in a close race with GOP Sen. Susan Collins.
Gideon’s skepticism about expanding the Supreme Court is shared by at least five other Democratic Senate challengers. A spokesman for Mark Kelly in Arizona confirmed he opposes adding new justices to the court. Jon Ossoff, who is challenging GOP Sen. David Perdue in Georgia, said Democrats shouldn’t expand the court “just because a justice may be confirmed with whom we disagree on policy.” Al Gross, an independent candidate running with Democrats’ support in Alaska, said on MSNBC Wednesday that he opposed adding new justices.
These candidates, looking to prevail in key swing states, join sitting moderate Democratic senators like Joe Manchin of West Virginia and Kyrsten Sinema of Arizona who oppose adding more justices. Of course, senators could always change their minds. But for now, the Democratic Party has a math problem if it hopes to add more liberal justices to the court under a prospective President Joe Biden.
Democrats will need at least 50 votes to pass any legislation to expand the court — and that’s assuming a new Democratic majority already took the contentious step of eliminating the filibuster’s 60-vote threshold first, which moderate senators oppose and challengers are mixed on. Republicans currently hold a 53-47 majority, and Democrats need a net three seats to take the Senate if Biden wins.
In fact, most of the politicians talking about expanding the court these days are Republicans, who are trying to paint their Democratic challengers as out of step with their constituents. During a debate Tuesday night, Sen. Thom Tillis (R-N.C.) pressed Democrat Cal Cunningham on court packing, and Cunningham cited Ginsburg’s own comments on keeping the court at nine justices to underscore his opposition.
“This I think sends Democrats around the exact wrong path. We don’t need more partisanship in our judiciary,” Cunningham told reporters following the debate.
Incumbent Senate Republicans said that voters shouldn’t buy Democrats’ statements about expanding the court. Sen. Martha McSally (R - Ariz.) called Kelly a “trojan horse” for liberals’ agenda.
“First he refused to answer. And then once he got hammered then he probably looked at some polls and called Schumer and asked what to do. Who are we trying to kid?” McSally said in an interview. “He is going to enable the most radical agenda we’ve seen in our lifetime to include their crazy ideas about packing the Supreme Court.”
“I don’t believe him,” said Sen. Dan Sullivan (R-Alaska) of Gross. “My opponent’s first vote if he won is to make Schumer Senate majority leader. And then, that’s it. You empower the radical left, which is what Schumer’s become, and you have no control.”
Republicans’ focus on the courts and the cautious posture by Democratic candidates reflects the tough terrain that the Democratic Party faces in its fight for the majority, with only two GOP incumbents in states won by Hillary Clinton up for reelection. Many of these potential majority-makers have sought to distance themselves from the party’s liberal wing, shunning proposals like the Green New Deal and Medicare for All.
Senior Democrats on Capitol Hill are giving them backup, too.
“We are not pursuing that at this point. At all,” said Senate Minority Whip Dick Durbin (D-Ill.) of changing the Supreme Court. “Usually the reality is that there will be members within the caucus that are more conservative. We even have that now.”
Despite the steep odds of cobbling together the votes for a Supreme Court overhaul, liberals pushing for ambitious change in the post-Trump era are unbowed by key candidates running away from the idea.
“I’m not worried about what they say about this in September 2020,” said Brian Fallon, a former aide to Schumer who now runs progressive legal group Demand Justice. “For now, these candidates should worry about their campaigns, while we on the outside continue to build grassroots support for doing what will be necessary if Republicans steal another seat.”
Sen. Ed Markey (D-Mass.) is pushing his party to promise revenge, but right now he has few takers. Put simply for most Democratic senators, structural changes to the Supreme Court are low on the priorities list.
Schumer has simply said that all options are on the table.
Sen. Jon Tester (D-Mont.) said that talking about payback is “totally crazy” given that an election is looming and that circumstances surrounding the court can always change by the time Democrats gain back power.
“You guys [in the media] are the only people talking about this. Who is going and giving speeches on the floor of the Senate in the Democratic Caucus on this?” said Sen. Chris Murphy (D-Conn.). “Literally 75 percent of the questions I’ve been asked over the last three days have been on this topic. When there’s one United States senator who has mentioned it.”
Democrats have opened the Supreme Court fight by attacking Republicans’ hypocrisy in not filling a vacancy four years ago — or criticizing others, like Michigan Republican candidate John James, for not taking a clear position on whether the nomination should move forward.
Senate challengers are using the Supreme Court fight to pressure Republicans on other issues, including the legal threat to the Affordable Care Act and pre-existing conditions protections — a matter that was already central to their campaigns. Kelly, Democrats’ candidate in Arizona, opposes adding new justices to the court, and criticized the focus on hypotheticals rather than the need for Covid-19 relief legislation.
“The Senate should be focused on passing urgently needed coronavirus relief for Arizonans — something they’ve pushed off for months — not rushing a vote on a lifetime nomination to the Supreme Court or issuing hypothetical threats about what will happen if the vacancy is filled,” Kelly said in a statement.
Still, some others have left the door open even as they decline to directly confront the question about the courts. Democratic Gov. Steve Bullock in Montana, who’s seeking a Senate seat in November, told the Washington Post during his presidential bid he was “open to discussion on different ways we can depoliticize the Supreme Court, including expanding the court.”
Bullock spokeswoman Olivia Bercow said in a statement Wednesday that Republicans view the court through a political lens, and Bullock "doesn't believe that in this hyper-political time that it's a conversation to be having or that this is a solution to the challenges we face now."
Former Colorado Gov. John Hickenlooper hasn’t endorsed or outright opposed adding seats. He said during his Democratic presidential bid he was concerned about the precedent for each party one-upping the other on adding seats, but also that he was open to it.
But this week Hickenlooper told the Colorado Sun he was not discussing hypotheticals in his challenge to GOP Sen. Cory Gardner, which he said would distract from Republicans’ decision to fill a vacancy in an election year.
Theresa Greenfield, who is challenging Iowa GOP Sen. Joni Ernst, was dismissive of adding seats to the court during a virtual candidate forum Wednesday afternoon. She said she didn't think that's "what we need to be doing" but also that she hadn't formed an opinion on it. Her spokesman clarified afterwards in a statement that she opposes adding new justices.
"It’s not something that Iowans are certainly talking about at this point in time," Greenfield said. "They’re talking about health care, and they know that health care is at stake at the Supreme Court.”