Following the confirmation by the United States Senate of Judge Amy Coney Barrett to the Supreme Court, Rep. Alexandria Ocasio-Cortez (D-New York) sent out a tweet that expressed her view of how Democrats should proceed from this moment onward.
“Expand the court,” Ocasio-Cortez wrote.
The congresswoman elaborated on the point in a second tweet, explaining that increasing the number of sitting justices on the high court was necessary because Republicans were no longer playing by the rules of legislative decorum. After Justice Antonin Scalia died, Republicans blocked President Barack Obama from appointing a replacement, saying that it was improper to do so 11 months before the 2016 presidential election. But following the death of Justice Ruth Bader Ginsburg seven weeks before this year’s election, the Republican Senate has gone ahead and appointed a new justice to the Supreme Court one week before Election Day.
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“Republicans do this because they don’t believe Dems have the stones to play hardball like they do,” Ocasio-Cortez said in her second tweet. “And for a long time they’ve been correct. But do not let them bully the public into thinking their bulldozing is normal but a response isn’t. There is a legal process for expansion.”
Republicans do this because they don’t believe Dems have the stones to play hardball like they do. And for a long time they’ve been correct. But do not let them bully the public into thinking their bulldozing is normal but a response isn’t. There is a legal process for expansion.
— Alexandria Ocasio-Cortez (@AOC) October 27, 2020
While not explicitly endorsing her position, Senate Minority Leader Chuck Schumer (D-New York) implied that the Republican Party’s hypocrisy in how justices have been confirmed (or not) in recent years would result in changes to Senate rules if Democrats win control of the chamber in the near future.
“The next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority,” Schumer said on Monday during a speech on the Senate floor.
Democrats are currently favored to win the Senate following this year’s elections, according to an analysis from FiveThirtyEight.com.
After two contentious Supreme Court nominations by President Donald Trump and their subsequent confirmation by Senate Republicans in the first two years of his presidency, Senate Democrats and voters had expressed concern over the possibility of a third appointment, especially if it occurred in 2020, an election year. Many Republican Senators, including current Senate Judiciary Chair Lindsey Graham (R-South Carolina), sought to quell those worries, stating in 2018 that there would not be confirmation hearings if the 2020 presidential primaries had already begun.
“I’ll tell you this — this may make you feel better, but I really don’t care — if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election” to fill the seat on the court, Graham said during a forum hosted by The Atlantic that year.
Following Justice Ginsburg’s death this year, however, Graham and his fellow Republicans who had made similar promises quickly reneged on them.
The question over whether Joe Biden, the Democratic Party’s nominee for president who is currently leading Trump in most polls, will push to expand the size of the Supreme Court or not is on many people’s minds, following the rushed confirmation of Barrett to the bench. Biden himself has been cryptic, pledging for now to support a commission to examine what changes may be needed within the judicial branch of the federal government if he’s elected president.
The Supreme Court’s size is not enshrined in the Constitution, and has been changed at various points in U.S. history. Efforts by President Franklin Roosevelt to expand the court, when his New Deal programs were being deemed unconstitutional by a majority of justices, were dismissed as too controversial. Roosevelt eventually backed away from the idea.
But changing the size of the court is an idea that has been flirted with as recently as four years ago — by Republicans, no less. When it appeared as though former Secretary of State Hillary Clinton was set to defeat Trump in the 2016 presidential election, some GOP senators pledged to obstruct any nominations to the court she would make during her presidential tenure, while others even suggested reducing the number of justices on the Supreme Court altogether, according to reporting from NPR at the time.