Loser Plan B? Supreme Court Reform Momentum Builds for Dem Sens

Loser Plan B? Supreme Court Reform Momentum Builds for Dem Sens pro life protesters outside supreme court (Allison Bailey/AP)

By Eric Mack | Friday, 03 December 2021 12:58 PM

As the Supreme Court revisited the constitutionality of abortion this week, Senate Democrats are growing increasingly concerned things will go their way.

So, to fight back at the perceived partisanship, they are ready to weigh more partisan reform on the judiciary by Congress, The Washington Post reported.

"It is hard to watch that — and I did watch a fair amount of it — and not conclude that the court has become a partisan institution," Sen. Brian Schatz, D-Hawaii, told the Post of this week's hearings on the Mississippi abortion case. "And so the question becomes, well, what do we do about it? I'm not sure. But I don't think the answer is nothing."

The Mississippi law would bar most abortions after 15 weeks and the Supreme Court is weighing the constitutionality of it as potentially set by Roe v. Wade precedent.

The nature of Wednesday's oral arguments had more than just Schatz concerned, and the answer to disagreement with the Mississippi case lawyer's argument has Democrats weighing more politics to overcome their fear of a court that had added three conservative justices under former President Donald Trump.

"What happened [Wednesday] forces all of us to rethink our views about the makeup of the court," Sen. Elizabeth Warren, D-Mass., told the Post. "They've undermined confidence in the court and force us in Congress to rethink how to build a court that the American people can trust."

Democrats will blame Senate Minority Leader Mitch McConnell, R-Ky., for his maneuvering to block former President Barack Obama's nominee Merrick Garland in the final year of the Obama administration, while getting Justice Amy Coney Barrett confirmed in the final weeks of the Trump administration.

Republicans argue Congress has the say in the confirmation process and they held the timely majorities, and now the talk of politicization of the court is the worst kind of politicization, the Post reported.

"Packing the court is an act of arrogant lawlessness," Sen. Mike Lee, R-Utah, said, denouncing Democrats' hypocrisy. "Those behind this effort spit in the face of judicial independence."

Sen. Chris Murphy, D-Conn., is upset with Justice Brett Kavanaugh's positions, but at least gives a rebuke to packing the court.

"Kavanaugh's cavalier talk [Wednesday] about precedent, and the clear political motivations of the plaintiffs in this case, are going to undermine faith in the judiciary," Murphy told the Post. "We've got to think about ways to sort of depoliticize the courts. And one of the ways to do that is to make sure that no one president gets to stack the bench."

Sen. Richard Blumenthal, D-Conn., wants to undo the lifetime appointments that were put into the Constitution with the intention of removing political influence on judicial decisions, the Post reported.

Sen. Jeanne Shaheen, D-N.H., suggested the Constitution is outdated and needs to be fixed by politicians — something inherently tough to do without politics.

"I'm not ready to say we need to change the number of justices, but I do think this is a different era," Shaheen said. "And we need to take a look at how the court functions."

Sen. Tina Smith, D-Minn., a former executive at Planned Parenthood in Minnesota, laments the perceived leaning in the case after this week's arguments.

"[Wednesday], we saw the court is politicized," Smith told the Post. "The question is what are we going to do about it? Are we going to take action to rebalance the court, or are we just going to sort of bury our heads in the sand and pretend that it hasn't happened?"

With the Democrats' blowback, there are some moderate Democrats sharing notions of caution.

Sen. Joe Manchin, D-W.Va., does not support expanding the court and has not considered term limits, while Sen. Jon Tester, D-Mont., has even gone as far as to denounce the latter.

"Where does this stuff stop, O.K.?" Tester told the Post. "I just think mandatory retirement gets into a bigger problem."