Judge Amy Coney Barrett is hurtling toward confirmation, potentially entrenching a durable conservative majority on the Supreme Court if the number of justices remains nine.
That is the top concern conservatives have: If the Democrats win the White House and the Senate, her placement on the Supreme Court by a president they detest and will have then defeated, with the votes of Republican senators who would not grant Democratic nominee Judge Merrick Garland a hearing in an election year, will push them inexorably toward court-packing legislation.
The Democrats’ decision to boycott the Senate Judiciary Committee vote on Barrett, allowing her nomination to be advanced to the full chamber by a unanimous 12-0 vote, was an admission there is little they can do to stop her. The 48-year-old performed well in the committee hearings, and Democrats failed to identify any issue that would potentially derail her, two years after the contentious Brett Kavanaugh nomination fight.
Public opinion has moved in Barrett’s favor. A Gallup poll found that 51% of people wanted her to be seated, making her more popular than Kavanaugh, Justice Neil Gorsuch, or President Trump, despite the opposition of 84% of Democrats.
Democrats are especially outraged that Trump will likely get to replace iconic liberal Justice Ruth Bader Ginsburg. “There is a nakedly political aspect to rushing to get this done,” said Democratic strategist Spencer Critchley. “When the president himself has blurted out the political reasons for doing this.”
Some leading Democrats have said that if they win the presidency and Senate following Barrett’s confirmation, they should proceed with legislation to expand the Supreme Court to allow for the nomination of additional liberal justices. This includes the top Democrat on the House Judiciary Committee.
Biden and his running mate, Kamala Harris, have declined to endorse court-packing, though they have also pointedly refused to rule it out. Biden said in an interview taped Monday that he wants a commission to study the issue. Democrats challenging incumbent Republican senators have often opposed it. A recent Washington Examiner/YouGov poll confirmed the idea is unpopular.
“We are strongly of the opinion that we need to keep the Supreme Court’s numbers the same,” said Paul Summers, a former Tennessee attorney general who is part of a bipartisan group mobilizing against such proposals. He argues court-packing would turn the Supreme Court into a super-legislature and that both parties would engage in it when they held power, with no logical stopping point.
There nevertheless remains the sense that if Barrett is confirmed and continually sides with the conservative bloc, Democratic support for court-packing will grow. “We’d have to be crazy not to do it,” said a Democratic operative. This could push institutionalists appointed by Republican presidents to side with the liberal bloc on some controversial decisions to undercut support for court-packing. “Intimidating Chief Justice [John] Roberts is part of the strategy,” said a conservative court watcher.
Controversies that could provoke the Democrats on court-packing could come as soon as next month if there is litigation about the presidential election that ends up before the Supreme Court. There could also be cases involving abortion and Obamacare.
Few conservatives favor shelving the Barrett nomination over these concerns. They point to Republican attempts to deescalate the Supreme Court nomination wars by voting overwhelmingly for Bill Clinton’s nominees — only three GOP senators opposed Ginsburg — after the rejection of Robert Bork and the narrow confirmation of Clarence Thomas after a bruising fight. Biden chaired the Senate Judiciary Committee during this time. Senate Democrats then filibustered some of George W. Bush’s lower-court nominees after he succeeded Clinton.
Sen. Ted Cruz, a Texas Republican, has introduced a single-sentence constitutional amendment: “The Supreme Court of the United States shall be composed of nine justices.” Summers floated the idea of advancing the amendment through a convention of the states, a process allowed by the Constitution but never utilized, if Democrats control both houses of Congress.
