Democratic leaders want to make changes in institutions and procedures to help win adoption of desired policies. But they should realize that whatever changes they make may someday be used by the Republicans to advance their own agenda as well.
One major change being advocated by Vice President Harris is to have the Senate eliminate the filibuster when considering abortion policy. Senate Democratic leader Chuck Schumer likewise wants to eliminate the filibuster to help pass legislation to expand voting rights.
The Constitution requires simple majorities in both houses of Congress to pass legislation and a simple majority in the Senate to confirm presidential appointments to the executive and judicial branches of government. But Senate rules allow senators to talk for unlimited lengths of time to slow down or block measures they don’t like. To end a filibuster requires the vote of 60 senators to “invoke cloture.” The practical effect is that it requires the approval of 60 senators to allow a vote on a bill or until recently a nomination. If 51 senators wanted to pass a bill or confirm an appointment, they couldn’t vote to do so unless 60 senators agreed to hold such votes.
During the Obama administration, Republican leader Mitch McConnell, one of whose main goals has been to minimize the number of Democrats and maximize the number of Republicans holding judgeships, used the threat of filibusters to prevent votes to confirm many of President Obama’s judicial nominees. Finally, the Democrat-dominated Senate voted to eliminate the filibuster in considering lower court judges, thereby allowing the approval of Obama’s nominees until they lost their majority following the midterm elections of 2014. But McConnell warned the Democrats that what goes around comes around: Someday the abolition of the filibuster would be used against the Democrats themselves.
In 2017 McConnell fulfilled his own prophecy. The Democrats had not abolished the application of the filibuster when considering Supreme Court nominees, which is why in 2016 McConnell was able to block the confirmation of Merrick Garland, President Obama’s choice to replace the deceased Antonin Scalia. But fearing the Democrats would block President Trump’s Supreme Court nominees, McConnell directed the Senate Republicans, now in the majority, to eliminate the filibuster for Supreme Court nominees as well as for nominees to lower courts. This paved the way for the confirmation of Trump’s nominees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—to the Supreme Court.
So Harris and Schumer should understand that should the Democrats retain their Senate majority following the 2024 election, they may more easily pass legislation expanding abortion rights, or voting rights, or enacting any other policies they choose. But they’ll also make it easier for Senate Republicans, when next they win a majority, to reverse whatever the Democrats have done as well as to enact their own agenda. Over Democratic opposition, for example, they could reduce or even eliminate abortion rights, or restrict voting rights, or expand gun owners’ rights. The possibilities are endless.
Much the same could be said for Democratic ideas to “reform” the Supreme Court in order to reduce the influence of the Court’s current conservative majority. A Democratic Senator has introduced legislation to expand the size of the Supreme Court from 9 to 14, evidently hoping Harris wins the Presidency with the opportunity to appoint 5 more liberal justices to thwart the conservatives.
Ironically, in the second half of the 1800s, it was the Republicans in Congress who liked to increase or decrease the size of the Supreme Court for their own political advantage. The Constitution itself created the Supreme Court as well as the office of Chief Justice but left it to the Congress to determine the number of associate justices to be added. By 1860 the Supreme Court had grown in size from 6 to 9. But at the onset of the Lincoln Administration, the GOP-dominated Congress added a 10th seat to the Supreme Court to give Lincoln additional appointment opportunities. But when Republican Lincoln was succeeded by Democrat Andrew Johnson in 1865, the Congress, still controlled by the GOP, passed legislation reducing, by attrition, the size of the Supreme Court from 10 to 7; Johnson was effectively blocked from making any Supreme Court appointments until there were at least 4 vacancies, after which he could start making appointments to a 7-member Supreme Court. But when Johnson was succeeded by Republican President Grant in 1869, the Congress restored 2 seats to the Supreme Court, bringing its size back to 9, its size today. A bipartisan coalition of Republicans and conservative Democrats blocked FDR’s court-packing scheme—his attempt to add up to 6 new seats—in the 1930s.
But given Democratic frustration with the outsized influence of the Supreme Court’s conservative majority, and especially with its decisions to overturn Roe v. Wade, expand presidential immunity, and restrict the use of racial preferences in college admissions, they may be ready to legislate the addition of more Supreme Court seats. Should the Democrats win the trifecta—taking the presidency and both houses of Congress—such legislation may well be enacted and more Democrats may thereby be put on the Supreme Court.
But as with the elimination of the filibuster, the expansion of the Supreme Court could well come back to haunt the Democrats after all. Should the Republicans win the trifecta in a later election, they can likewise add more seats to the Supreme Court as well. Why stop at 14 seats? The Constitution imposes no upper limit to the size of the Supreme Court. And the GOP could go even further: It could create more trial courts and intermediate appellate courts, all to be packed by Republicans, courtesy of a Republican president and a Republican-dominated Senate. Abortion rights could once again be restricted, and gun owners’ rights, presidential immunity, etc., etc. could thereby win even more protection over Democratic opposition.
Harris, Schumer, and their allies in Congress are well within their constitutional rights to end the filibuster and expand the Supreme Court. But they’d better heed Mitch McConnell’s warning: What goes around comes around. Their “reforms,” if enacted, stand an excellent chance of coming back to bite them in the you-know-where. No doubt the Republicans are already sharpening their fangs.
Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024). He was Mayor pro-tem of Stephenville from 2008 to 2014. He has served on the Board of Directors of the Stephenville
Economic Development Authority since 2018 and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015. He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District. Views expressed in this column are his and do not reflect those of The Flash as a whole.
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