(CNN) — Senate Democrats are indicating that they may push legislation to expand the Supreme Court by adding additional seats to retaliate against Republicans if they succeed in confirming President Donald Trump’s pick to fill the late Justice Ruth Bader Ginsburg’s seat.
It’s an option that has picked up increased interest in the wake of Ginsburg’s death — and one that Democratic leaders are not ruling out.
“We basically have kept options open,” Senate Minority Whip Dick Durbin told CNN’s Newsroom anchor Ana Cabrera Saturday night.
“We’d rather see this go through the regular process that Senator (Mitch) McConnell announced four years ago and that all of the Republicans stepped forward and said that we believe in this approach: We don’t fill vacancies on the Supreme Court in the last year of a president’s term,” said Durbin in reference to GOP senators’ 2016 sentiments on filling Supreme Court vacancies.
Senate Majority Leader Mitch McConnell vowed Friday that whomever Trump nominates to replace Ginsburg will get a vote on the Senate floor, signaling a historic fight in Congress over one of the most polarizing issues in American politics.
The topic of how Democrats should respond was a dominant theme in a conference call the Senate Democratic Caucus held Saturday afternoon, according to Democratic sources, where many Democratic senators spoke about the events and where Minority Leader Chuck Schumer warned that “nothing is off the table” if a Trump nominee is confirmed this election year.
Schumer on Friday said that a Supreme Court vacancy “should not be filled until we have a new president.”
But several things would have to happen in order for Democrats to be successful in their approach to expanding the Supreme Court.
First, Senate Democrats would have to win the majority in November — and the fight for control of the chamber is currently at a razor’s edge. If they win the majority, it almost certainly will be an extremely narrow advantage — potentially one or two seats, or even a 50-50 Senate. And if former Vice President Joe Biden wins the presidency, they then would have to take a series of steps to make expanding the high court a reality.
It would then include gutting the filibuster, a stall tactic frequently used by the Senate’s minority party and that requires 60 votes in the chamber to overcome. They would need a simple majority of senators to get that threshold down to 51.
But several Democratic senators have already voiced strong opposition over killing the filibuster based on fears that would have long-standing ramifications for the institution and the country.
Ultimately, adding seats to the Supreme Court would take passing legislation once the filibuster is changed — something that would be a hugely controversial move even within the Senate Democratic Caucus.
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