| USA TODAY
Is it constitutional to ‘pack’ the supreme court with more justices?
The Supreme Court didn’t always have nine justices, in fact, it had more. But what changed and made nine the number that stuck?
WASHINGTON – The battle for control of the Senate loomed over the Supreme Court confirmation process of Amy Coney Barrett, firing up lawmakers from both parties even if the final, mostly party-line vote to confirm her was a forgone conclusion.
Republicans’ control of the Senate, where they hold a 53-47 majority, could soon be a memory if Democrats win just four seats on Election Day. Republicans have held an advantage in the Senate since 2014, but this year, seven races are rated as “toss up,” according to the nonpartisan analysts at the Cook Political Report.
That’s why the election, and the potential for a shake-up after Election Day, seemed to permeate every step of the process of replacing Justice Ruth Bader Ginsburg on the Supreme Court. Democrats used Barrett – and the court’s potential to upend Obamacare – as a rallying cry for the elections, while Republicans fast-tracked the process to get it done by Nov. 3 over the objections of Democrats.
Before she was confirmed, Senate Majority Leader Mitch McConnell, R-Ky., hinted at possible changes in the body post-Election Day.
“We made an important contribution to the future of this country. A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come,” he said on the Senate floor Sunday, later telling Politico the odds of keeping the Senate majority were “50-50.”
Sen. Lindsey Graham, R-S.C., who chairs the panel that shepherded Barrett’s nomination, has acknowledged the electoral reality, too, telling Democrats during the confirmation hearings, “Y’all have a good chance of winning the White House.” Democrat Joe Biden leads President Donald Trump in most national polls heading into November.
In many of the most competitive Senate races, those which may determine who controls the chamber, donations surged after Ginsburg’s death and Democratic donors flooded campaigns with cash, allowing Democratic challengers to outraise and poll competitively against Republicans even in GOP-leaning states like Montana and North Carolina.
Democrats have outraised Republicans in six of the seven Senate races rated “toss-up” by the Cook Political Report. The sole “toss up” race where a Republican incumbent outraised the Democrat was Sen. Kelly Loeffler’s race in Georgia, where she and her husband have self-funded millions of dollars of her campaign’s expenses.
But political experts told USA TODAY that while the Supreme Court battle energized senators and may motivate voters, it’s unlikely to tip the balance in close Senate races across the country.
“The issue on top of voters’ minds really isn’t the Supreme Court. It’s health care accessibility exacerbated by the pandemic,” said Jessica Taylor, the Senate and governors editor for the Cook Political Report.
Instead of campaigning on the Supreme Court itself, both sides used the hearings and the confirmation debate to deliver election-year messages about health care and other controversial issues. Democrats seized on the issue of health care as they criticized Republican incumbents for supporting Barrett’s nomination with its potential impacts on the Obama-era Affordable Care Act. And during the hearings, Democratic senators peppered the nominee with questions about her position on the Affordable Care Act, while Republicans countered Barrett had no “agenda” toward the law or any other legislation.
Brian Krebs, the vice president of client strategy at Rising Tide Interactive, a digital marketing agency that works with Democrats, said both sides had used the Supreme Court confirmation battle to energize their bases, but as time went on their advertising was “less about the specifics in her nomination and pending confirmation, more on what the effects of the court will be down the road” for pending Supreme Court cases on the Affordable Care Act and other controversial issues.
University of Nevada-Las Vegas political science Professor Rebecca Gill said the court could become a motivating issue for Democrats because the conservative 6-3 majority is “likely to be unfavorable to a lot of the things that Democrats hold dear” like abortion and the Affordable Care Act.
In Iowa, Democrat Theresa Greenfield said incumbent Republican Sen. Joni Ernst’s vote for Barrett was “another reminder that health care is on the ballot this year,” and in North Carolina, Democrat Cal Cunningham said Sen. Thom Tillis’ support of Barrett was evidence he was trying to “take away health care from North Carolinians.”
Republicans in tight races like Ernst and Tillis hope the confirmation will “shore up some base conservative voters” in their GOP-leaning states, Taylor said.
Tillis, when asked about his race by reporters at the Capitol on Sunday, said the Supreme Court battle might only “influence the outcome of the election on the margins,” and pointed instead to his state’s COVID-19 response and Cunningham’s personal issues as larger factors.
The focus on health care and the pandemic rather than on the process of the confirmation could work to Democrats’ benefit. A CNBC/Change Research poll from Oct. 21-24 found voters ranked those two issues as the most important going into the election and favored Biden on the two issues.
These national dynamics are playing out in one of the most hotly contested Senate races in the country in South Carolina, where Graham is locked in a tight reelection race against Democratic nominee Jaime Harrison.
Harrison has broken fundraising records, raising over $100 million in his bid to oust Graham, though most of Harrison’s donations have come from out of state. His campaign has sought to tie Graham to the impasse on COVID-19 stimulus talks and criticized him for pressing forward with Barrett’s nomination.
“Lindsey would rather break his word to rush through a Supreme Court nominee just days before an election than deliver aid to his constituents who are suffering and dying without it,” campaign spokesperson Guy King said on Monday.
Graham is running on his record with the Supreme Court.
He has run ads against Harrison linking him to some Democrats’ calls to expand the number of seats on the court and urging voters to back him instead because “we need a conservative Supreme Court.”
Assuming Democrats win a Senate majority, “there will be a tremendous amount of pressure on Biden and on the Senate as well” to expand the size of the Supreme Court, said Professor Barbara Perry, director of presidential studies at the University of Virginia’s Miller Center and a Supreme Court expert, adding progressives might think they would need to “fight fire with fire” after Trump appointed three justices to the Supreme Court.
Jesse Hunt, a spokesperson for the National Republican Senatorial Committee, the Senate Republicans’ campaign arm, warned Democratic Senate candidates had to answer for some Democrats’ threats to expand the number of seats on the court or change the Senate’s rules.
“This retaliation would undo American democracy as we know it, and it’s deeply unpopular with mainstream voters,” he said.
One Republican senator who bucked her party, Susan Collins of Maine, will likely find herself in a hard place between partisans on both sides, Taylor said. Collins was the only Republican to vote against Barrett, citing her confirmation vote happening so close to Election Day. Taylor said Collins’ decision “was going to hurt her with conservatives” and might not help her either with independents and liberals after provoking their ire during the battle over Judge Brett Kavanaugh’s Supreme Court confirmation, Taylor explained.
After the confirmation vote, Collins’ Democratic challenger Sara Gideon called the vote “nothing more than a political calculation.”