WASHINGTON — With President Donald Trump and Senate Republicans gearing up to rapidly fill a Supreme Court seat vacated by the death of Justice Ruth Bader Ginsburg, Democrats are confronted with the daunting challenge of how to stop them and honor the liberal icon's dying wish.
But there's not much they can do to stop a nomination.
Senate Republicans have a 53 to 47 majority, and they abolished the filibuster for Supreme Court nominations in 2017. They can confirm a new justice even if they lose three of their own members and win zero Democrats (in which case, Vice President Mike Pence would cast the tie-breaking vote).
Democrats would need to convince four Republicans to vote against the nomination to block it. Failing that, progressives say their only method of retaliation would be to capture the White House and Congress and add seats to the Supreme Court.
On a call with Democratic senators Saturday, Senate Minority Leader Chuck Schumer, D-N.Y., who would take over the chamber if his party wins control in November, kept that option open.
"Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table," he said, according to a source on the call.
Schumer wasn’t specific, but Democratic aides interpreted his remarks as a reference to expanding the number of seats on the court. Congress has changed the size of the court before — but not since 1869, when it went from seven to nine.
The news of Ginsburg's death shook both parties, as the Senate is already dealing with stalled negotiations on another round of coronavirus relief legislation, an upcoming government funding deadline and elections that will determine which party controls Congress.
After the news broke, a number of senators started a text chain strategizing their response, which a person familiar with the communications described as "robust and passionate."
Senate Democrats are also exploring the idea of a vigil on the steps of the Supreme Court this coming week to honor Ginsburg, whose legal achievements could be unraveled by a potential 6-3 conservative majority.
Inside the Democratic caucus, opinions are mixed about whether they'd retaliate if Trump succeeds in placing another justice on the court.
One Senate Democratic aide said a Supreme Court expansion was a "real possibility."
"I think this will radicalize moderates," the aide said. "And people who you would never think would be open to this will be."
But a different aide said court expansion was "empty talk" from the party leadership, lamenting that Democrats are "never going to get enough votes from moderates to make it happen."
'Add some seats to the Supreme Court'
A Democratic senator insisted the nomination can be stopped and said it was too early to talk about retaliation. "I’m not there yet. I’m trying to win," said the senator, who spoke on the condition of anonymity. Asked how the party could flip four Republicans, the senator said: "One at a time."
Expanding the court would probably require abolishing the 60-vote rule to advance legislation, which many Democrats are hesitant to do. Schumer recently gave the same answer when asked if he'd end the filibuster to advance progressive priorities: "Nothing's off the table."
The stakes are enormous.
Obamacare is headed back to the Supreme Court one week after Election Day in deep peril, as Ginsburg's death leaves only four justices who upheld the law in 2012. And some Republicans are insisting on replacing Ginsburg with a jurist who opposes Roe v. Wade, which affirmed abortion as a legal right.
Former Sen. Barbara Boxer, a California Democrat, said Saturday on MSNBC that if Republicans replace Ginsburg this year after refusing to consider President Barack Obama's nominee in 2016, it would be "enough, frankly, to get the Democrats to do what they would have to do, which is to change the structure of how we do business, and yes, perhaps add some seats to the Supreme Court."
The election is in 44 days, but the next Congress isn't sworn in for 106 days. Republicans could use the lame-duck session after the election to confirm a justice. Some conservatives expect a confirmation hearing before the Nov. 3 election and a final vote after the election.
House Speaker Nancy Pelosi, D-Calif., on Sunday would not rule out impeaching Trump or Attorney General William Barr if the Senate seeks to push through a Supreme Court nomination during a lame-duck session, vowing to use "every arrow in our quiver."
Democrats are pointing to statements from Republicans such as Senate Judiciary Chair Lindsey Graham, R-S.C., who invited Democrats to "use my words against me" if his party tried to confirm a nominee in 2020 during election season after refusing to do the same in 2016.
A GOP senator, who spoke about strategy on the condition of anonymity, said the party "will have to listen carefully to the vulnerable members on the ballot before cementing a schedule," but expected a Trump-picked justice to be confirmed this year.
Sen. Susan Collins of Maine, who faces a tough re-election race this fall, was the first Republican who came out after Ginsburg's death to announce her opposition to voting on a Supreme Court nominee before the election.
"Given the proximity to the presidential election, however, I do not believe that a Senate should vote on the nominee prior to the election. In fairness to the American people," she said, adding that the winner of the presidential election should pick the next justice.
Democrats see other potential Republican targets in institutionalists like Sens. Lisa Murkowski of Alaska, Mitt Romney of Utah and Lamar Alexander of Tennessee.
Some Republican incumbents facing tough campaigns this fall, including Martha McSally of Arizona and Thom Tillis of North Carolina, have called for a vote on Trump's nominee this year. Others, such as Sen. Cory Gardner of Colorado, have stayed mum since Ginsburg's death Friday.
"Our No. 1 goal must be to communicate the stakes of this Supreme Court fight to the American people," Schumer told Democrats on the Saturday call. "Everything Americans value is at stake. Health care, protections for pre-existing conditions, women’s rights, gay rights, workers’ rights, labor rights, voting rights, civil rights, climate change and so much else is at risk."