VOTE 20

GOP Leader Admits To Ruthless Supreme Court Swindle, As His Party Is Projected To Lose Election

The Senate Majority Leader seemingly acknowledged that the GOP is losing the popular vote, but that Republicans are cementing their minority-supported ideology with a supermajority on the Supreme Court — achieved by breaking their own rules.

Senate Majority Leader Mitch McConnell (R-KY) leaves the chamber after a procedural vote to advance the confirmation of Amy Coney Barrett to the Supreme Court, at the Capitol in Washington, Sunday, Oct. 25, 2020. (AP Newsroom)
Senate Majority Leader Mitch McConnell (R-KY) leaves the chamber after a procedural vote to advance the confirmation of Amy Coney Barrett to the Supreme Court, at the Capitol in Washington, Sunday, Oct. 25, 2020. (AP Newsroom)

Mitch McConnell is on the brink of getting what he wants: a conservative supermajority on the Supreme Court that will last for decades, even as his party continues to lose democratic elections. The Senate Majority Leader was clear when he spoke on the floor Sunday night and appeared to acknowledge that the GOP is on track to lose (democratically) in current and upcoming elections:

“A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” McConnell said, adding: “They won’t be able to do much about this for a long time to come.”

The reaction to this brazen comment was instantaneous: Democratic and independent senators, as well as political analysts and activists, read it as a challenge, given the current conversation around expanding the number of seats on the Supreme Court.

The GOP broke its own rules to rush Amy Coney Barrett's Supreme Court confirmation

The confirmation process for Supreme Court Justice nominee Amy Coney Barrett is without precedent in American history. 

With a vote scheduled for Monday night in the GOP-held Senate, this is the fastest a nominee has been confirmed to the highest court in the land since 1975 — and it’s never happened this close to an election. That confirmation was for Associate Justice John Paul Stevens, who had much more broad bipartisan support than Barrett does: he was confirmed in a 98-0 vote, while Barrett will be the first justice since 1869 confirmed with support from just one party. (Since we’re living in unprecedented pandemic times, it’s also never happened in the midst of an election; as of Monday midday, at least 61.2 million Americans have already voted.) President Trump and Republicans rushed to make that a reality in the midst of a presidential election they are projected as likely to lose, breaking their own rules and precedents in the process.

The same Senate Republicans rushing to confirm Barrett are the ones who left Justice Antonin Scalia’s Supreme Court seat open for more than a year in order to deny President Obama a chance to fill that vacancy.

In March 2016, Obama nominated appellate judge Merrick Garland to the Supreme Court, about a month after Scalia died and eight months before the election. McConnell, who was already Senate Majority Leader by that time, unwaveringly blocked Garland’s confirmation — saying “Let’s let the American people decide” — and he succeeded. Many GOP senators refused to even meet with Garland even though it’s custom to do so with SCOTUS nominees; Barrett, in recent weeks, has been meeting with senators on Capitol Hill even in the midst of a COVID-19 outbreak linked to her own nominating ceremony.

Not only did Republican senators refuse to meet with Garland, they refused to hold a hearing or vote on his nomination, claiming that it was too close to the presidential election and that the next president should be the one to fill Scalia’s vacancy.

This time around, with a Republican president, GOP senators completely reversed course and are rushing to confirm Barrett at breakneck speed, ignoring multiple polls that showed a majority of Americans believed the winner of the 2020 election should get to fill the vacancy left by the late Ruth Bader Ginsburg, who died of complications from cancer on September 18, 2020. Seven days after Ginsburg’s death, Trump held a nominating ceremony for Barrett in the White House Rose Garden, against the express wishes of Ginsburg. NPR reported that Ginsburg told her granddaughter in the days before her death, “My most fervent wish is that I will not be replaced until a new president is installed."

The White House ceremony for Barrett was later deemed a “superspreader event” for COVID-19.

Why everyone's talking about "court packing," or expanding the court

Democrats have consistently opposed rushing the confirmation process for Barrett, boycotting a key Senate Judiciary Committee last week that had to happen in order to move her nomination forward. Without the presence of two members of the minority party, the committee did not have a quorum and should not have been able to vote on the nomination. Judiciary Chair Sen. Lindsey Graham (R-SC) said he “waived” the rules and moved forward with a vote anyway, breaking the rules in order to keep Barrett’s confirmation on track.

The idea of adding seats to the nine-justice Supreme Court has become increasingly popular among some voters and activists in the face of the GOP hijacking the democratic process for judicial confirmation. 

Often referred to as “court packing,” but perhaps more accurately termed “expanding the court,” the idea has the backing of some current senators — and may garner even more support in light of McConnell’s comments Sunday night. Given McConnell’s successful packing (or “stacking”) of the federal judiciary, by blocking Obama’s nominees and fast-tracking Trump’s, some analysts and activists are starting to call it “court balancing” or “rebalancing the courts.”

Sen. Angus King, an independent from Maine who caucuses with the Democrats, said Sunday night, “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?”

Sen. Ed Markey (D-MA) simply tweeted in response to McConnell, “End the filibuster and expand the Supreme Court.”

Elie Mystal, justice correspondent for The Nation magazine, summed up the Senate majority leader’s challenge in this way: 

Democratic presidential nominee Joe Biden has been asked repeatedly if he supports expanding the court on the campaign trail. 

While he has declined to give a yes or no answer on expanding the court, Biden said in a “60 Minutes” interview aired Sunday that if elected, he will form a bipartisan commission to research court reform and make recommendations within 180 days. In addition to court expansion, other suggested reforms include term limits for Supreme Court justices, who currently have lifetime appointments. Former Labor Secretary Robert Reich, a proponent of expanding the court, has noted that there’s nothing in the U.S. Constitution that prohibits increasing the size of the Supreme Court.

If Biden wins the presidency and Democrats are able to flip the Senate, addressing the imbalance of the courts will likely be high on the agenda—and that may end up being McConnell's legacy.

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