People should stop talking about blocking the Republicans from filling the seat before the Election. What matters is keeping the seat open until after the Inauguration.
(I say that because I’ve heard too much commentary that acts like the Election is what matters. What matters is the possibility of taking the appointment out of the hands of Donald Trump and handing it to Joe Biden. That means when power has been transferred— and not a moment before. Indeed, it might serve the Republicans political interest better if they could commit their shameless act of hypocrisy after the voters have had their say.)
Joe Biden provided good language that might be good for everyone to use, “the voters should pick the President, and the President should pick the Justice.”
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Michael Tamosky has proposed as one (of three) ways the Democrats could fight this, a rather bold move:
“Some Democratic senators who might have Mitch’s ear, say Joe Manchin, will go to him. And Mitch will say: F*ck off. However, the Democrats have a card to play here, if Joe Biden will play it. The number nine (of Supreme Court justices) is neither in the Constitution nor law. Biden, and Chuck Schumer, can say: If you fill this seat now, if Biden wins, we’re expanding the Court to 11 or 13, and your majority is dead. And they should be ready to do it.”
I like the boldness: it’s about time that Democrats fought in a more hardnosed way against this kind of foe. And this particular gambit has the virtue of making one’s own misconduct — because Court-packing is frowned upon — the responsibility of the other guy. When FDR packed the court, it not only failed but it cost him politically. But FDR took the initiative, whereas this ploy makes the court-packing an act of retaliatory response.
“You do the right thing, and not be such a complete hypocrite,” the Democrats say to McConnell, “or we will make changes that take back what you stole with your disreputable actions in 2016.”
So I think that might be feasible, politically, if it’s sold well.
But will the Democrats — even assuming they hold a (small) majority in the Senate — have the power to make good that threat? Is the Court so easily packed?
