The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For some time, there has been a poorly-kept secret in Washington: as soon as the Democrats take power, they will make four power moves. To date, most prudent Democrats have refused to discuss these four moves aloud. But now with Justice Ginsburg's death, the cat is out of the bag. Jeffrey Toobin lays out the roadmap in the New Yorker:
The question is whether the Republican Senate will violate its supposed principles from 2016 to push one of them through. If the answer is yes—if Trump fills the Ginsburg seat—the next question will be how the Democrats respond. If the Democrats fail to retake the majority in the Senate in November, their options are few except to grin and bear it. But, if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution—which all happen to be good policy as well.
- The first is the abolition of the filibuster, which should have happened decades ago. Even in the minority, McConnell will do everything he can to thwart Biden, and the filibuster will be the tool. This antidemocratic relic should be retired once and for all.
- Second, statehood for the District of Columbia and Puerto Rico, with two senators apiece, would be another appropriate rejoinder.
- Third, Congress should pass a law expanding the number of lower-court federal judges; that number has not increased since Jimmy Carter was President.
- Finally, the greatest and most appropriate form of retribution involves the Supreme Court itself. The number of Justices is not fixed in the Constitution but, rather, established by statute.
If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that's happened, that's a game they should learn to play.
I disagree with only one of Toobin's predictions. He writes that the these outcomes are "possibilities" "if Trump fills the Ginsburg seat." Argle bargle. These steps will happen no matter what Trump and Mitch do.
However, I disagree with Toobin's ordering. I agree with the first step: the filibuster will be nuked. I've long predicted this this step would happen in the wake of a calamity. For example, there is a mass killing, and Republican senators filibuster an assault weapon ban. At that point, there will be a majority to eliminate the filibuster. But given the current climate, the Green New Deal, or some such bill could be deemed momentous enough to pass nuke the filibuster.
Toobin lists statehood for D.C. as the second option. I disagree. The presently-constituted conservative Supreme Court may very well declare that bill unconstitutional. If the Democrats were smart, they would first pack the Supreme Court. New justices could be confirmed in the span of a month or two. After the Supreme Court has eleven members, then they can safely create statehood for D.C. by statute. (It isn't clear Puerto Ricans even want statehood, but things may change). The statehood bill would be subject to immediate challenge. But it will be upheld by a 6-5 vote. (Get used to that new number). As that statehood litigation is making its way though the courts, then the Democrats can pack the lower courts. Even without blue slips and cloture, it may take a year or more to fill all of those vacancies. The lower courts really should be the last step.
These steps will happen whether or not Trump fills the vacancy. There is still bad blood from the Garland nomination.
Update: I deleted from this post a line that alluded to RBG's last words. They were in poor taste, and my point failed entirely. I sincerely apologize for them.