Welcome to hell, where the Supreme Court now has six conservative justices. With eight days to go before the election, on Tuesday President Donald Trump and his band of Senate Republicans successfully confirmed his third Supreme Court justice pick, Judge Amy Coney Barrett. The soil on Ruth Bader Ginsberg's fresh grave has barely settled, and yet her ideological opposite is filling her seat.
In possibly a grim portent of what's to come, just before the nomination vote, the Supreme Court ruled 5-3 that Wisconsin absentee ballots postmarked on election day but received after the deadline won't count. The court will also soon weigh in on cases regarding absentee ballots in North Carolina and Pennsylvania this week, not to mention the cases on the Affordable Care Act, and whether undocumented immigrants should count in the census. I can't imagine those decisions will fare any better with Barrett and all her conservative Catholic baggage on the bench.
The Senate confirmed Barrett in a 52-48 vote. No one from the minority party voted for her confirmation. Sen. Maria Cantwell and Sen. Patty Murray of Washington were strong "no" votes. With civil liberties and affordable health care on the line, you'd think Democrats like Murray and Cantwell would start calling for some sort of action, a game plan at least. Well, you'd be wrong.
Both Murray and Cantwell understand the stakes. In statements made on the Senate floor Tuesday, Murray laid out her views on Barrett's confirmation. She likened Republican refusal to pass another COVID-19 relief package and playing down the virus threat to "kind of like the captain of the Titanic passing out umbrellas, and telling passengers that’s all they need."
She also referred to Barrett as an "anti-health care judge" and accused Republicans of "explicitly [rejecting] attempts to help families and communities get through this pandemic." Murray named several Washingtonians who would be impacted by Barrett's confirmation.
Cantwell made similar statements. She spoke about how Barrett's views on abortion, on same-sex relationships, and on health care are "outside the mainstream." Cantwell argued that Barrett was on the wrong side of all those issues and that her positions would jeopardize the American people.
I do not appreciate the rush to confirm Judge Barrett. Her views are out of the mainstream. She's been critical of the #ACA & its coverage for preexisting conditions. And she refused to say whether #Medicare and Social Security were constitutional. #WhatsAtStake
— Sen. Maria Cantwell (@SenatorCantwell) October 26, 2020
Cantwell's probably right. So, what is left to do? Wait for each justice over 70 to pack it up or die, assuming we elect a non-Trump president? Sure, maybe if you like watching your hard-fought rights to same-sex marriage, affordable health care, and abortion slip through your fingers. Progressives have a different idea:
Expand the court.
— Alexandria Ocasio-Cortez (@AOC) October 27, 2020
Expand and pack the courts. Pick up where Franklin D. Roosevelt left off when he tried and failed to circumvent a conservative bench with a court-packing bill back in the 1930s. Biden and moderate Democrats waffle on whether they'd mess with the make up of SCOTUS. Most recently, Biden said he'd establish a commission on court reforms to look into a myriad of issues, court-packing among them.
So, where do Cantwell and Murray stand? They're taking the same tepid wait-and-see approach as Biden.
When I asked about whether she would support expanding and then packing the court, Murray responded via a spokesperson.
"Republicans made up their own rules to block Merrick Garland, they broke their rules to confirm Amy Coney Barrett, and tonight, Republicans have made it clearer than ever how many systems and institutions in our country, from our courts to voting rights and more, must be strengthened and reformed," Murray's statement read.
Tucked in there is an insinuation about reforming the courts. Does that mean expanding and packing the Supreme Court if Nov. 3 goes not-horribly? When I asked, the spokesperson said the previous statement was the only comment Murray's team had.
Cantwell took her sweet time to answer. But, after some prodding, her team sent along whatever this statement means:
"The way Republicans speed-dialed this nomination onto the Senate floor was beyond frustrating," Cantwell's statement reads. "They should have considered Merrick Garland four years ago. On Nov. 3 we need to be successful so we have the majorities to do everything in our power to protect a woman’s right to choose and Americans’ access to health care under the Affordable Care Act."
Washington's senators won't explicitly say whether they're down for packing the courts, but they're positioning themselves in the "do everything in our power" and institutional reform camps. Maybe these lukewarm statements are Cantwell and Murray dipping their toes into the expand and pack the court pool. Or, maybe they're hoping a blue wave crashes down on election day and leaves Democratic majorities in the House and Senate in its wake, enabling Congress to restrict the Supreme Court’s authority.
Democrats across the board are in agreement that, as Senate Minority Leader Chuck Schumer put it, this Supreme Court majority will "threaten... fundamental rights." What the Dems haven't worked out is their messaging on what they'll actually do to stop that threat. We don't have the luxury of Barrett's confirmation being a hypothetical anymore. SCOTUS is fucked. Let's stop beating around the bush.