Bitter fight over Barrett fuels calls to nix filibuster, expand court

The fallout from Justice Amy Coney Barrett’s confirmation fight is fueling calls for Democrats to nix the filibuster and expand the Supreme Court next year if they win back the Senate majority and the White House.

The long-simmering debate over the seismic changes is gaining new steam amid deep frustrations about the state of the Senate, which has been battered by a slew of explosive fights in recent years that have ratcheted tensions to an all time-high.

Supporters of adding court seats and eliminating the filibuster argue that Barrett’s confirmation fight — which came four years after Republicans refused to give Judge Merrick Garland a hearing or a vote — lays the groundwork for Democrats to enact rules and structural changes.

“We’re not getting anything done if the legislative filibuster is in place. It has to go, it should go on day one,” said Meagan Hatcher-Mays, the director of democracy policy at Indivisible. “We are thinking of this fight — for the courts and the fight for our democracy — as two parts of the same fight.”

Progressives in both the House and Senate have doubled down on their calls for Democrats to expand the court after Barrett’s confirmation.

“Republicans have been packing the Supreme Court for years. It’s our job now to expand the court and return justice to the judiciary,” Sen. Ed Markey (D-Mass.) tweeted Tuesday.

Rep. Alexandria Ocasio-Cortez  (D-N.Y.), who has garnered chatter as a potential primary challenger to Senate Minority Leader Charles Schumer (D-N.Y.) in 2022, called for Democrats to “expand the court,” adding in a tweet that Republicans “don’t believe Dems have the stones to play hardball like they do.”

Democrats have been careful not to say what they will do if they are in the majority next year, arguing that with the election looming, the discussion isn’t yet ripe. But they warned that the fight over Barrett’s nomination is making them rethink how the Senate functions as an institution.

“Democrats are going to have to wrap their mind around what has happened, because we can’t be the only ones showing any restraint. Right, because that’s just a recipe for getting rolled and rolled and rolled, and that’s a recipe for entrenching minority rule. … So something has to give,” said Sen. Brian Schatz (D-Hawaii).

Sen. Chris Murphy (D-Conn.) added, “I think there are now new rules in the Senate, and I think Republicans have set them.”

The fallout from Barrett’s confirmation comes as the Senate has already been bruised in recent years by rules changes, increased polarization and Justice Brett Kavanaugh’s confirmation, easily the most explosive fight over a Supreme Court nominee in the last 30 years.

Republicans say nixing the filibuster is not the solution.

“To do that would inflect even deeper, deeper wounds, fundamentally and dramatically altering how the levers of power operate in this country. … So we’ve got to figure out how to de-escalate,” said Sen. Lisa Murkowski (R-Alaska), adding she was “frustrated” by the state of the Senate.

Sen. Lamar Alexander (R-Tenn.), a close McConnell ally who is retiring at the end of the 116th Congress, added that the Senate needed a “change in behavior more than we need a change in rules.”

But Barrett’s confirmation dropped a bomb into an ongoing debate among Democrats about how big they should go next year if they have control of both Congress and the White House.

Supporters of nixing the 60-vote legislative filibuster argue it stands in the way of some of the biggest priorities for Democrats, including health care, voting rights, climate change and potentially even another round of coronavirus relief.

Eliminating the filibuster is also at the heart of the debate over expanding the Supreme Court, which would require passing legislation through both chambers and getting a signature from the president.

Democrats would need 50 votes in the Senate to go “nuclear” and lower the legislative filibuster without GOP support. If it remains intact, Democrats would need to win over several Republican senators to round up the 60 votes needed to pass most legislation.

Democratic leadership hasn’t ruled anything in or out if they control the Senate next year as they try to keep their caucus unified ahead of the November election.

But Schumer warned that Republicans have lost their right to kvetch about how Democrats might run the chamber.

“The next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority,” Schumer said.

It’s unclear if Democrats will have the necessary votes, and a razor thin margin could complicate their strategy. When Democrats nixed the filibuster for certain nominees in 2013, the party had a 55-45 majority. By comparison, FiveThirtyEight estimates that a 51-49 Democratic majority is the most likely outcome for 2021.

In 2013, three Democratic senators voted against lowering the 60-vote threshold for executive, district court and appeals court nominations; of the three only Sen. Joe Manchin (D-W.Va.) is still in the Senate. Of the 47 members of the Democratic caucus today, 36 were senators in 2013 and voted to use the nuclear option.

Republicans have seized on the debate among Democrats about nixing the filibuster and expanding the Supreme Court to try to squeeze candidates in key battleground states. Democratic presidential nominee Joe Biden, a long-time institutionalist, has not said whether he supports nixing the legislative filibuster and expanding the court. Instead, he’s set up a court reform panel.

But there are signs of significant shifts within the Democratic caucus toward making changes to the structure of the Senate and the courts.

“I genuinely think that Ruth Bader Ginsburg’s passing away and the way that Mitch McConnell decided to kind of run up the score … really seems to have radicalized some Democrats that I guess I never would have thought would be radicalized,” said Hatcher-Mays.

Sens. Jon Tester (D-Mont.) and Angus King (I-Maine) — long viewed as crucial swing votes on nixing the filibuster — have signaled they are open to it if Republican obstruction makes it impossible for them to pass legislation.

King and Sen. Chris Coons (D-Del.), who are viewed as institutionalists, have also opened the door to expanding the Supreme Court if Democrats are back in power next year.

“We’ve got to have a wide open conversation about: How do we rebalance our courts?” Coons said during a recent interview with MSNBC. “We’ve got to look at our federal courts as a whole.”

King, during a floor speech that caught the attention of progressive advocates, accused Republicans of “pearl clutching” on the issue of expanding the Supreme Court.

“I don’t want to pack the court, I don’t want to change the number. I don’t want to have to do that. But if all of this rule-breaking is taking place, what does the majority expect, what do they expect?” he asked.

Pointing to King and Coons, Hatcher-Mays argued that Senate Majority Leader Mitch McConnell (R-Ky.) and Republicans have “overplayed their hand” with Barrett’s confirmation.

“All anybody is talking about right now is fixing the problem that Republicans created,” she said. “There’s nothing radical about Democrats saying elections have consequences and if we win, we’re going to fix the problem.”