WASHINGTON — Senate Democrats have no procedural options to block Republicans from confirming a Supreme Court nominee this year and while they are vowing to make sure voters understand what’s at stake, they are also shying away from any discussion of making drastic changes to the Supreme Court or the Senate, according to a dozen senators NBC News spoke with.
Many of those Democrats worry that vowing to permanently alter the upper chamber and threaten the structure of the court — by eliminating the filibuster or adding Supreme Court seats — could complicate the party’s chances in swing states where Democrats are attempting to beat Republican incumbents.
"We should win this election,” said Sen. Michael Bennet, D-Colo., when asked about the best way respond to Republicans’ likely vote on a Supreme Court nominee less than 45 days before an election.
The hesitation to vow retaliation comes as Democrats look to balance the Joe Biden-led pitch of a return to normalcy with their base’s anger at the prospect of the confirmation of a Trump-picked successor who could seek to unravel the late Justice Ruth Bader Ginsburg’s legacy on the Court.
Knowing they can do little to stop a nomination from proceeding in the Republican-led Senate, Democrats instead are planning to focus on how people’s lives would be impacted with another Republican appointee on the court.
Specifically, they’ll focus on the Affordable Care Act. The Supreme Court will hear a case on the ACA the week after the election and if struck down could take away health care from millions of Americans.
“What we are doing right now it's making clear what's at stake, and getting everyone in the fight,” Senator Elizabeth Warren, D-Mass., said. “This fight touches the lives of every single person in this country. It's all on the table.”
The confirmation of Supreme Court nominee is a complicated political calculation for half a dozen Senate Republicans facing difficult races in November and Democrats are working to ensure they keep the pressure on, including when it comes to members backtracking on their 2016 precedent in exchange for a more conservative court.
“Moving forward with a nominee in the middle of an election when people, the American public, should have the right to weigh in, is a continuation of this administration's — and quite honestly the Republicans’ — action to take away health care,” said Sen. Catherine Cortez Masto, D-Nev., who is running the Senate Democrats campaign committee.
Senate Majority Leader Mitch McConnell's decision to move forward with the vote could boost support for GOP senators in swing states where President Donald Trump is currently faring better than them in the polls, including North Carolina where Trump is polling eight points better than Rep. Sen. Thom Tillis, who has 37 percent support according to a recent New York Times/Sienna College poll.
But in states like Maine, where Sen. Susan Collins is outperforming an unpopular president, GOP insistence on quickly confirming a Trump nominee could further be harmful.
Meanwhile, Republicans warn that if Democrats focus on retaliation, it could backfire electorally.
“I trust that they won't go that way, but I hope voters will take note that they're willing to, they're willing to tear down our constitutional norms, in order to get their way, when they're out of power,” Sen. Josh Hawley, R-Mo., said.
While Sen. Brian Schatz, D-Hawaii, said now is not the time to focus on any procedural changes Democrats would make, he suggested that Democrats should highlight what he called “procedural violence” by Republicans.
“Regardless of the politics, this is an important point to make for history what Mitch McConnell is doing to the Unites States Senate,” he said.
The top of the ticket has also not appeased liberal activists who are demanding that Democrats take measures that they say is on par of Republican destruction of norms and precedent.
Asked whether he'd be open to adding Supreme Court seats if the vacancy is filled and Democrats win the election, Biden punted and said he intends to keep the focus on the Republican violation of principle.
“I have not heard any senators talk about that,” Sen. Jeanne Shaheen, D-N.H., said of attempts to eliminate the legislative filibuster or add seats to the Supreme Court.
But Senate Democratic Leader Chuck Schumer told members on a conference call Saturday, less than 24 hours after the death of Justice Ruth Bader Ginsburg, that it Republicans move ahead, “nothing is off the table.”
When asked again Tuesday if he fears that such threat could harm his attempt to regain the majority, he said, “everything is on the table. My Senate democratic colleagues and candidates know America needs some change. And we are going to figure out the best way to do it.”
Two Democratic Senators who are up for re-election, Sens. Doug Jones of Alabama and Gary Peters of Michigan, shied away from discussing hypotheticals should Senate Democrats win the majority and said Senate Republicans should be focusing on the crisis at hand, not creating another one.
Peters told NBC News that his party will "keep pushing" to delay the vote on a Trump nominee, but he didn't say how they would respond if Republicans fill the vacancy.
"We've got to focus right now on COVID," he said. "I'm really frustrated by all this talk about moving this forward when Mitch McConnell who refuses to deal with the crisis that I'm hearing about back home. All this other stuff is parlor games. Let's focus on what's happening in our states."
Bennet didn't say what the appropriate Democratic response should be, but he criticized Trump and McConnell for their "relentless" drive to support the wealthy and powerful over working people, and for supporting efforts to repeal Obamacare and "take health care away from millions of Americans.
Sen. Chris Murphy, D-Conn., said it's "premature" to talk about retaliation and that Democrats need to focus on the existing fight.
"We have to use every tool at our disposal to make sure the American public has enough time to see what the consequences of this nomination would be," he said, referring to the Obamacare case: "You're talking about 25 million people losing their health care almost overnight."