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Democrats threaten to expand and pack the Supreme Court if the GOP dares fill a high court vacancy this year
Photo by Jabin Botsford/The Washington Post via Getty Images

Democrats threaten to expand — and pack — the Supreme Court if the GOP dares fill a high court vacancy this year

Left-wing Democrats are worried about a potential opening and determined to expand and pack the high court

Democrats are warning the Republican Senate majority that if President Donald Trump gets a chance to nominate a third Supreme Court justice this year, the GOP-led upper chamber had better not confirm whomever the president sends over.

According to NBC News, Democrats are threatening to expand and pack the high court once they regain power should Majority Leader Mitch McConnell (R-Ky.) opt to confirm a Trump SCOTUS pick.

What's going on?

Democrats remain in a tizzy over the Republican-controlled Senate's refusal in 2016 to consider President Barack Obama's nomination of Merrick Garland to fill the seat of the late Supreme Court Justice Antonin Scalia.

At the time, McConnell and his fellow Senate Republicans were invoking the so-called "Biden rule" — a position advocated in 1992 by then-Sen. Joe Biden when he justified delaying President George H.W. Bush's Supreme Court nomination should the need arise.

Since then, the majority leader has been attacked by Democrats for saying he would fill any Supreme Court vacancy that occurred during the final year of President Trump's first term.

The left has blasted McConnell as a hypocrite, but he and GOP leadership have countered that there's a major difference between 2016 and 2020: When President Obama nominated Garland, his party was in the minority in the Senate; but President Trump's party currently controls the Senate.

And now rumors swirling that President Trump could get a chance make a Supreme Court nomination in 2020 — from speculation about the possible retirement of either Justice Clarence Thomas or Justice Samuel Alito to concerns over the health of the court's oldest member, Ruth Bader Ginsbur. Democrats are particularly concerned about a possible Republican-tapped replacement for Ginsburg, the court's most reliably liberal voice, who has had a string of health issues over the last few years, the most recent being that she is undergoing treatment for the recurrence of liver cancer.

With all that's at stake with the Supreme Court, Democrats are warning Republicans that filling a vacancy in this election year would embolden them to expand the size of the court once the party controls the Senate and the White House.

The prospect of an all-Democrat government is a real possibility this year, based on polling. Democrats, who currently have zero concern over losing control of the U.S. House of Representatives, are feeling fairly optimistic. According to Real Clear Politics' polling averages for the Senate in 2020, the GOP has a one-seat lead (47-46) should the election be held today, but seven Senate seats are currently ranked as "toss ups" — six of them are currently held by Republicans. And President Trump is having his own struggles: According to the RCP polling averages, Trump trails presumptive Democratic nominee Joe Biden by 7.4 percentage points nationwide.

Sen. Tim Kaine, a Virginia Democrat, told NBC, "We knew basically they were lying in 2016, when they said, 'Oh, we can't do this because it's an election year.' We knew they didn't want to do it because it was President Obama."

Kaine, Hillary Clinton's 2016 running mate, told NBC that the GOP should not be surprised if his party opts to expand the Supreme Court and fill it with left-wing justices.

"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 warned. "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."

Democratic Sen. Mazie Hirono (Hawaii), an outspoken liberal progressive member of the Senate Judiciary Committee who famously lamented the presumption of innocence and due process as she attacked Justice Brett Kavenaugh during his confirmation hearings, said she has been "talking with people who have different ideas about what we can do — including adding to the court, including having certain circuit court judges cycle in and other ideas" like term limits," adding, "I'm open to those kinds of suggestions," NBC reported.

The Democratic Party, NBC said, is planning to add language to the 2020 platform calling for structural reforms to the high court "to increase transparency and accountability" and accusing the GOP of having "packed our federal courts with unqualified, partisan judges who consistently rule for corporations, the wealthy, and Republican interests."

Last year, Hirono and a few fellow Senate Democrats issued a brief to the Supreme Court that it needed to "heal itself" as part of a warning to the court about a then-impending Second Amendment case. They threatened the court with retaliation should it not bend to their will.

"The Supreme Court is not well. And the people know it," the brief said. "Perhaps the Court can heal itself before the public demands it be 'restructured in order to reduce the influence of politics.' Particularly on the urgent issue of gun control, a nation desperately needs it to heal."

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