Democrats are exploring a surprising solution for balancing the Supreme Court if Ruth Bader Ginsburg is replaced before the 2020 presidential election: simply expanding the bench. President Donald Trump and Republican leaders are rushing to fill Ginsburg's spot before November, tipping the court even further to the right, politically. While Democrats may not be able to stop them, they could add even more judges to balance the scales.
The idea of expanding the Supreme Court has been discussed in whispers, but was promoted most overtly by Massachusetts Sen. Ed Markey on Friday, according to a report by Forbes. Markey pointed out that current Senate Majority Leader Mitch McConnell himself established the rule that a Supreme Court seat cannot be filled during an election year back in 2016, yet he is the one now threatening to break it. If he can do that, Markey argues, then Democrats can expand the Supreme Court to add more judges.
In the face of Republican hypocrisy and corruption, we must use all the tools at our disposal to stop Donald Trump from appointing a far-right ideologue to the Supreme Court. There are just 44 days until the election. No amount of pressure is too much. https://t.co/CgHl9CIZ1I— Ed Markey (@EdMarkey) September 20, 2020
"Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year," he said. "If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court." The filibuster is a threshold of 60 votes that's necessary before a piece of legislation is given a vote.
Markey was referring to the death of Justice Antonin Scalia in March of 2016 — eight months before the presidential election and ten months before Trump's inauguration. At the time, McConnell said that the Senate could not vote then-President Barack Obama's appointed replacement for Scalia because it was an election year. Yet, when Ginsburg passed away on Friday — less than two months before the 2020 election — McConnell was quick to say that he would approve Trump's appointment to her seat no matter what.
McConnell and other Republican leaders have acknowledged the contradiction in this, and openly embraced it as a political strategy. It is not clear what legal power Democrats might have to stop them, but Markey's idea could be one of them. Senate Minority Leader Chuck Schumer reportedly said that "nothing is off the table," but declined to comment specifically on expanding the Supreme Court.
Democratic presidential nominee Joe Biden has dismissed the idea, however, saying that he does not want to add new seats to the court. However, Biden has said that Trump should not be allowed to appoint a successor to Ginsburg unless he is re-elected in November. At the time of this writing, Trump's nomination has not been publicly announced, but a list of 20 candidates has been published.