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Democrats hint at consequences as GOP moves to confirm Amy Coney Barrett

Democrats have temporarily iced the debate about court expansion, but their pushback Thursday previewed an internal fight on how to respond if they take power
Image: Senate holds confirmation hearing for Amy Coney Barrett to be Supreme Court Justice
Judge Amy Coney Barrett testifies during the third day of her Senate confirmation hearing to the Supreme Court on Capitol Hill on Oct. 14, 2020.Erin Schaff / Pool via Reuters

WASHINGTON — Republicans are confident a vote confirming Amy Coney Barrett to the the Supreme Court is only days away, but Democrats are looking farther ahead and warning that this swift process on the eve of an election won't be quickly forgotten.

Even as senators shared lighthearted and jovial moments with colleagues in the confirmation hearings, some Democrats warned there could be consequences.

"The rule of 'because we can,' which is the rule that is being applied today, is one that leads away from a lot of the traditions and commitments and values that the Senate has long embodied," Sen. Sheldon Whitehouse, D-R.I., said.

"Don't think that when you have established the rule of 'because we can' that should the shoe be on the other foot that you will have any credibility to come to us and say, yeah, I know you can do that but you shouldn't because of X, Y, Z," he said. "Your credibility to make that argument in the future will die in this room and on that Senate floor if you continue to proceed in this way."

Whitehouse's warning comes ahead of an election in which polls say Democrats are favored to win the presidency and potentially full control of Congress.

The remarks foreshadow what could be a major fight among Democrats about whether — and how — to retaliate if they regain power in January. Party sources say it is unclear how they will respond and that it depends on what happens the election — that if they win, the magnitude of victory will determine whether they have the necessary votes and mandate to take drastic action.

Some progressive activists have pushed the party to expand the Supreme Court in retaliation, unhappy that Republicans refused to confirm President Barack Obama's final nominee months before an election but are letting Trump fill a vacancy as Americans have already begun to cast votes. Biden has said he's "not a fan of court-packing" as he runs to restore norms and institutions and keeps his focus on defeating the coronavirus and protecting health care access.

Senate Judiciary Chair Lindsey Graham, R-S.C., has argued that Democrats opposition to Justice Brett Kavanaugh's nomination then justified the reversal of his previous promise not to fill a Supreme Court vacancy in the last year of Trump's term.

"I made it pretty clear that what I thought what happened to Justice Kavanaugh changed every rule, every norm," he said, while praising Democrats for conducting themselves respectfully with Barrett. "Once we have a new election, then hopefully we'll have a fresh start."

The Democrats didn't pointedly bring up court expansion on Thursday, a topic that they've put on the back-burner. But they said the future of the institution looks bleak.

"I don't know how we get this train back on track," Senate Minority Whip Dick Durbin, D-Ill., said in the committee. "But this nomination, at this moment in time, is not usual, not normal, and it's beneath the dignity of this committee."

Calls for Feinstein's removal

The top Democrat on the committee, Sen. Dianne Feinstein, D-Calif., closed on a note of praise for Graham, which rankled progressives.

"I just want to thank you. This has been one of the best set of hearings that I've participated in," she told them. "Thank you so much for your leadership." The two embraced as the hearing ended.

In response Brian Fallon, the executive director of the progressive advocacy group Demand Justice, called for removing Feinstein from the leadership role on the committee.

"She has undercut Democrats' position at every step of this process, from undermining calls for filibuster and Court reform straight through to thanking Republicans for the most egregious partisan power grab in the modern history of the Supreme Court," Fallon said in a statement. "If Senate Democrats are going to get their act together on the courts going forward, they cannot be led by someone who treats ... the Republican theft of a Supreme Court seat with kid gloves."

Image: Supreme Court nominee Amy Coney Barrett during the Senate Judiciary Committee hearing
Supreme Court nominee Amy Coney Barrett during the Senate Judiciary Committee hearing on Oct. 14, 2020.Demetrius Freeman / Getty Images

The Democrats did try to use procedural motions to slow the process down. Graham shot them down and set a committee vote for 1 p.m. Eastern Time on October 22.

After that vote, which is likely to receive the backing of all the Republicans on the panel, the nomination would move to the full Senate, which could hold a final vote as early as Monday, Oct. 26, the week before Election Day. Aides cautioned that nothing is set yet.

"We have the votes," McConnell told reporters in Kentucky.

Sen. Cory Booker, D-N.J., said Thursday he recognized that "this goose is pretty much cooked."

The most immediate consequence of confirming Barrett, which would sharply tilt the balance of the Supreme Court and cement a 6-3 conservative majority, was set to occur at the ballot box.

Four Republicans on the Judiciary committee — Graham, John Cornyn of Texas, Thom Tillis of North Carolina and Joni Ernst of Iowa — are facing competitive reelection bids. Tillis and Ernst are trailing their opponents, and polls indicate most Americans want Republicans to wait to fill the vacancy.

All four offered praise for Barrett and are expected to support her.

The only Republican who has said she'll vote "no" is Sen. Susan Collins, who faces a difficult re-election battle in Maine, and said it was the wrong time to fill a high court vacancy. In addition, Sen. Lisa Murkowski, R-Alaska, has said she opposes the process at this time, but her office said she wouldn't comment on how she'd vote in a final up-or-down referendum until after she meets with Barrett.

Republicans need 50 of their 53 members to secure confirmation.