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Senate Dems Backing Down From Court-Packing Proposal, May Also Reject Killing Filibuster
UNITED STATES - JANUARY 22: Sen. Dianne Feinstein, D-Calif., is seen in the Capitol before the continuation of the impeachment trial of President Donald Trump on Wednesday, January 22, 2020.
Tom Williams/CQ Roll Call

Senate Democrats are signaling that threats, made in the wake of Supreme Court Justice Ruth Bader Ginsburg’s death, may have been hasty. Democratic leaders are now rushing to tamp down talk of expanding the Court beyond the current nine seats and some may even be waffling the idea of killing the filibuster — a proposal that, just days ago, was all but certain to turn into reality.

Despite claims that “nothing is off the table,” from Senate Minority Leader Chuck Schumer (D-NY) and Senate Judiciary Committee member Richard Blumenthal (D-SC), Sen. Dianne Feinstein (D-CA), who would chair the Judiciary Committee if Dems retake the Senate, says a move to “pack” the Court is unlikely, per The Hill.

“Senate Democrats are tamping down talk of expanding the Supreme Court if Republicans fill the seat held by the late Justice Ruth Bader Ginsburg,” the outlet reported Wednesday. “Progressive activists and some lawmakers have raised the idea since Ginsburg’s death was announced on Friday night, arguing the party needs to be ready to take bold steps if they have the Senate majority and the White House next year while facing a 6-3 conservative court.”

Feinstein’s staffer reportedly denied the idea is on the table, and Sen. Dick Durbin (D-IL), often an outspoken partisan, claimed that it was  “way too soon” to talk about adding to the Court.

The Daily Beast also reports that Senate moderates are pushing back against progressives, who want all out war with Senate Majority Leader Mitch McConnell (R-KY) over his decision to replace Ginsburg before the November election — and that pushback includes warnings about threatening to pack the court.

A “faction, composed mainly of moderates, felt that members should stay squarely focused on the implications that the confirmation would have on health care—arguing that the public, especially in key swing states, would be moved by fears that a new court (and even the current eight-member one) could allow for the full destruction of the Affordable Care Act,” Daily Beast noted.

More than likely, Senate Dems are concerned that, if they add seats to the court, a Republican-controlled Congress might do the same, leading to a sort of “arms race” over increasing the number of Supreme Court Justices. The issue is also generally seen as an outside proposal, one Democrats have regularly tried — and failed — to pass since Franklin Delano Roosevelt’s administration.

But in addition to wavering on court-packing, it now seems Democrats are wavering on ending the filibuster — something that was on the table even before Ginsburg passed away last week.

“Sen. Dianne Feinstein (D-Calif.), who would chair the Senate Judiciary Committee if Democrats win back the majority, is against nixing the legislative filibuster, which would be a necessary first step to adding seats to the court,” The Hill reports.

Even progressive stalwarts like Sen. Elizabeth Warren (D-MA) seem less open to discussing the possibility, telling media this week that Democrats will instead focus on the immediate repercussions of a conservative Supreme Court, particularly as they relate to health care.

Durbin, in his discussion with The Hill, even seemed to suggest that McConnell was simply using an existing discussion as a warning to pull Democrats into a “distracting” argument.

“You’ll notice it’s the arguments being used by Sen. McConnell on the floor now. We have all these threats of changes in the future if we go ahead with this filling this vacancy. I think we ought to focus on the nominee, that nominee’s beliefs, and what they’re likely to do on the court in the context of the Affordable Care Act,” Durbin said.

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