With a fall vote on President Donald Trump’s pick for the Supreme Court all but assured, the next question is what Democrats will do to counteract a firmly conservative high court if they manage to take both the presidency and the Senate.
Many Democratic voters and some politicians are calling for major changes on the court — most notably expanding the number of justices — if and when their party regains power. “Nothing is off the table” for Senate rules changes if Republicans fill the vacancy left by Ruth Bader Ginsburg so soon before the election, Senate Democratic leader Chuck Schumer of New York said in a weekend conference call with Democratic senators.
John Hickenlooper, the Democrat challenging Republican Sen. Cory Gardner in Colorado, isn’t ready to talk about how his party should respond come January. Just as presidential candidate Joe Biden has spurned talk this week of changing the court size, Hickenlooper declined in an interview with The Denver Post on Tuesday to take a position.
“I’m not going to answer your question, just because I can’t believe they’re going to go through with this,” Hickenlooper said when asked whether he believes Democrats should respond to a Trump court appointment by adding more seats to the bench.
When he ran for president in 2019, the former Colorado governor said he could support such a move only if he thought a conservative majority on the court would seek to gut or eliminate things he considers basic civil rights.
Expanding the court wouldn’t be unprecedented, though it’s been a while. The Supreme Court’s size can be changed by legislation, and the number of seats varied during its first 80 years from a low of six at the time the Constitution took effect in 1789 to a high of 10 during the Civil War. The current tally of nine justices was set in an 1869 law.
Changing the number again is up for discussion because even in Democrats’ dream election scenario — in which they flip the Senate, keep the House, and Biden defeats Trump — a 6-3 conservative court majority, featuring three justices appointed by Trump, could easily blunt or reverse any number of policy changes that result.
How, Hickenlooper asked, can senators like Gardner vote to confirm a Supreme Court nominee so close to Election Day, when just four years ago they refused to do so some eight months before the election? Gardner declined through a spokesperson to be interviewed for this story. Hickenlooper said he’s very “disappointed” in Republicans, and that he believes he can change their minds.
“If people like myself can keep the focus on what these senators said, and what the commitment was they made to their state and to their country (in 2016), then a couple of them are going to flip,” he said, adding, on the question of court expansion: “As soon as I start talking about hypotheticals, however possible they are, I distract us. We’ve got a very short window.”
Hickenlooper is a moderate Democrat and a folksy campaigner who believes that bipartisanship can win the day, even as Washington grows increasingly polarized. When he was governor, he and then-Ohio Gov. John Kasich, a Republican, forged a partnership that had some in the national press speculating about them splitting a 2020 “unity” ticket.
Asked if it’s naive to think Republicans will suddenly change course after they’ve so clearly stated their intent to confirm a nominee, Hickenlooper said, “That’s exactly what reporters said to Kasich and I: ‘They have the votes, they have the votes.’ I’m not optimistic, but I don’t see what I lose by spending a couple weeks trying to keep the focus laser-, laser-focused on the Senate and the decision they’re going to make.”
He said that if that doesn’t work, he’ll be open to talking about how a potential Democratic-majority Senate might answer in 2021.
While running for president last year, Hickenlooper was not supportive of the idea of adding more seats to the court to undo a conservative majority.
“I’m concerned by the precedent this could set. As president I could add five seats, but the next Republican president might then add six more,” he told The Washington Post.
At another point in 2019, though, Hickenlooper said in a town hall, “The one place where I might consider court packing … if the basic civil rights of this country seem at risk, I think that might be the one thing that would persuade me to, and perhaps it’d be on a temporary basis, but to court pack, to balance back any objective framework, to bring back the appropriate balance in our judicial (branch).
“If I had ever imagined that we would see this level of assault on a woman’s right to control their own body, I just wouldn’t have believed it,” he continued. “So that would be the one example where — you know, someone’s basic right to marry someone they’re in love with. Love is love. A woman’s right to her own body. All the basic civil rights.”
It’s unclear just how broad Hickenlooper’s definition of basic civil rights is, but the examples he gave then — LGBT rights and reproductive rights, including legal abortion — are imperiled by Ginsburg’s death. Roe v. Wade, which established the nationwide right to abortion, could be overturned.
That kind of move by the Supreme Court, Hickenlooper said last year in another presidential campaign stop, would make court expansion “so tempting.”
As to whether he’s prepared to give into that temptation, Hickenlooper said, before ending Tuesday’s call, “I will be much more forthcoming once we get this thing past. I promise.”
The Associated Press contributed.
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