The Democrats and their hand-maidens in the media are suggesting all kinds of apocalyptic outcomes should the Senate GOP majority confirm a nominee by President Trump to the Supreme Court, if that is followed by a Biden win coupled with the Democrats taking control of the Senate.
With control of both Houses of Congress, an ending of the legislative filibuster, and a willing occupant in the White House, the Democrats could easily pass legislation expanding the size of the Supreme Court. The Constitution does not set the number of Justices on the Court, it has not always been nine, and when it was expanded to nine it was done so by way of legislation in 1869. Between 1801 and 1869 there were five laws passed by Congress which changed the size and composition of the Court to take into account the growing size of the country.
In 1937, Franklin Roosevelt proposed legislation to Congress that would have increased the Court from 9 to 15 members over a period of years, in response to Court decisions striking down parts of The New Deal. His idea was to add new Justices until there was a working majority on the Court that would be sympathetic to the policies of his Administration. But the plan was opposed even by Democrats in Congress and was eventually struck down by a vote of 70-20.
The idea that in today’s radicalized political environment the Democrats could reconstitute the Court as a functioning political apparatus to aid their political goals without suffering at the ballot box is folly. The Democrat Senators who would have to vote for it would also need to run for re-election at some point in the next 2-6 years — and not all of them come from Vermont, New York, or California.
The Democrats would need every vote they could muster in the Senate. That would mean the following Senators would need to vote in favor of “court-packing” for it to pass:
Sinema (2024)– Arizona*
Bennett (2022)– Colorado
Stabenow (2024) — Michigan*
Peters (2026, assuming he wins re-election this year) — Michigan*
Amy Klobuchar (2024)– Minnesota
Tina Smith (2026)– Minnesota
Tester (2024) — Montana*
Mastro (2022) — Nevada
Rosen (2024) — Nevada
Shaheen (2026) — New Hampshire
Hassan (2022) — New Hampshire
Udall (2026) — New Mexico
Heinrich (2024) — New Mexico
Brown (2024) — Ohio*
Casey (2024) — Pennsylvania*
Warner (2026) — Virginia
Kaine (2024) — Virginia
Manchin (2024) — W. Virginia*
Baldwin (2024) — Wisconsin*
The date next to each Senator’s name is the next year that Senator must stand for re-election following a vote in favor of “court-packing” in 2021. Each of those Senators comes from a state already trending towards the GOP or a battleground state at the least. Of those listed, Trump won Arizona, Michigan, Montana, Ohio, Pennsylvania, West Virginia, and Wisconsin.
The Senators at risk by such a vote in 2022 would be: Bennett, Mastro, and Hassan. Bennett might survive, having comfortably won re-election in 2016 when other Democrats faired much worse. But Mastro and Hassan would certainly be at risk as Nevada and New Hampshire could easily swing more decidedly to the GOP. Nevada is trending that way already as more non-liberals leave California to cross-over into Nevada — especially northern Nevada areas around Reno. New Hampshire has trended more to the Democrats over the last decade, but still has a strong libertarian streak who would likely be put-off by a Democrat effort to fundamentally alter a branch of the federal goverment.
But the real action would come in 2024. Whoever is in the White House would have to run for re-election where “court packing” was essentially a referendum on the Admistration. And in that same year Sinema, Stabenow, Klobuchar, Tester, Rosen, Heinrich, Brown, Casey, Kaine, Machin and Baldwin would all have to run for re-election. I would guess that at least 3 would opt to retire — Manchin, Tester, and Brown would be almost certain losers in West Virginia, Montana, and Ohio. Baldwin and Casey could also fall in that category if Wisconsin and Pennsylvania continue their move towards being red states.
If those races were taking place this year, the Democrats could lose as many as eight of those seats — Sinema, Stabenow, Tester, Rosen, Brown, Casey, Manchin and Baldwin.
That could take Democrat numbers in the Senate into the low 40s.
So, let’s see a show of hands once again for the idea that Chuck Schumer, immediately after becoming Majority Leader, will line up 51 votes to likely crush his Senate majority for a generation.