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When asked if he would move to confirm a Supreme Court nominee in the last year of Donald Trump’s current term, Mitch McConnell smirked. He said yes, and a room full of Republicans laughed cheerfully. What was so funny about that? In 2016, McConnell refused to allow Barrack Obama’s nominee, Merrick Garland, to be confirmed to the Supreme Court.
The Senate Majority Leader cited a new rule that the Senate was following, saying that the Senate shouldn’t confirm the nominee of a lame duck president. In 2020, there is a distinct likelihood of such a scenario arising. Ruth Bader Ginsburg is 87 and is battling cancer for the fifth time. As such, hip arthritis is hardly the most of her worries. What happens if Republicans get to nominate a third justice during Trump’s term?
Six of the last seven presidential elections have seen Democrats win the popular vote. In spite of this, Conservatives control the Supreme Court with a 5-4 margin. This is largely due to McConnell’s admittedly underhanded tactic of blocking Garland’s rightful nomination to the court. Should McConnell get the opportunity to nominate another justice, skewing things to a 6-3 court, Democrats would likely be livid.
This situation could get messy should it occur after Election Day. If Donald Trump and Senate Republicans lose their seats in the election, the ensuing chaos could be immense. If Democrats take office in January there is a course of action open to them, one that was recently mentioned by Senator Tim Kaine.
In an interview with Sahil Kapur, Kaine raised the specter of packing the court.
“If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability,” Kaine stated. “I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So, they need to be careful about that.”
Packing the court is the term that refers to a legal process by which Congress could introduce legislation that increases the number of seats on the Supreme Court. This is Constitutional, though it’s largely considered a massive escalation. If Democrats pack the court in 2021, then Republicans could do the same the next time they come to power.
At this stage, it’s hard to say whether this is likely. However, should Democrats gain control of the White House and Senate but face a conservative majority on the court, some among them may call for drastic measures. If Mitch McConnell can fight dirty, why shouldn’t Democrats?
