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Noah Rothman made, what I think, is a really interesting point on the Commentary Magazine Podcast about the threat of court-packing should the Democrats take back the Senate. Basically, his argument is that there will simply be no political will to actually go through with it and the nature of the Senate majority will work against it as well.
Looking at the polling, I think he may be right and it’s something I’ve thought about since Justice Ginsburg passed away. I want to lay out my thinking and see what others think. I want to note at the outset that I believe that there will be incredible pressure in the House to take up court-packing and adding new states. AOC is already setting the table for that particular food fight and I doubt Speaker Pelosi (assuming she is still the Speaker) will be able to resist that for long. But how far that goes in the Senate is another story.
Let’s start with the Real Clear Politics Senate map. Under their polling average, there are a total of 9 toss-ups: AZ, GA, IA, ME, MI, MN, MT, NC, and SC. Of these states, only 2 (MI and MN) are currently held by Democrats. The other 7 represent the best chances for Democrats to pick up seats. However, even under the best-case scenario of a clean sweep, that means Democrats will end up with a 52-48 majority. Included in that majority will be Senator Manchin of WV, Senator Bullock of MT, Senators Kelly and Synema of AZ, and Senator Harrison of SC. Each of these individuals represents an otherwise reliably Republican state. Even though Arizona appears to be a toss-up, Governor Ducey remains very popular, so the GOP is not in quite as bad of shape as some think. My point is that the Senate majority in this scenario is comprised of a number of Senators from typically conservative states.
In order to pack the Court, the first step would be to end the filibuster. Given the hypothetical majority, the Democrats can lose only 2 votes and still get a tiebreaker from VP Kamala Harris. Manchin, Synema, and even Dianne Feinstein have already opposed ending the filibuster. Is it really that likely that Bullock would support it? Is it that likely that Harrison, assuming he just defeated Lindsay Graham, would throw away any chance at reelection? I just don’t think that’s likely.
But let’s assume that there are the votes to end the filibuster. Now comes the vote to actually pack the Court. The rationale is, apparently, that the handling of Merrick Garland and Amy Coney Barrett was so bad that the Court must be packed in order to “restore balance.” I think 2 major data points are worth noting. First, polling is very much in favor of confirming now-Justice Barrett. Even Politico had it at 51%-28% in the Justice’s favor. Second, a recent NYT/Sienna College poll found that Americans oppose Court packing by a 58%-31% margin. I don’t see how that changes enough to risk the political fallout.
Given how unpopular court-packing is, and how narrow the Senate majority would be, I don’t see how there are enough votes to get over the finish line. I don’t see Manchin, Bullock, Synema, Kelly, or even Feinstein supporting such a measure. At least not without Biden pushing for it. That seems very unlikely to me.
So, fellow Ricochet members, what am I missing? Am I wrong?Published in