These are not good times for California’s senior senator Dianne Feinstein.  Prominent Democrats want her replaced as ranking Democrat on the Senate Judiciary Committee.  They blame her for interjecting religion into the 2017 confirmation of Supreme Court pick Amy Comey Barrett, and they do not want her leading the confirmation battle against Barrett this time.

But Feinstein is not going to be replaced, and in fact she and Sen. Kamala Harris could well be key players in the great battle for the future of the United States Supreme Court that may well take place not this year but in 2021.

That’s because the October confirmation of Judge Barrett to the Supreme Court is a done deal, and if they are smart the Democrats will not put on a Kavanaugh like circus.  You will recall that in the last Supreme Court confirmation, Democrats dragged out unproven sexual misconduct charges against nominee Judge Brett Kavanaugh that in the end cost the Democrats a Senate seat or two in the 2018 election.

Democrat cannot stop the confirmation of Judge Barrett as they could not stop the confirmation of Judge Kavanaugh.  And they could not stop Senate Republicans from refusing a hearing for Judge Merritt Garland, President Obama’s choice in 2016.  But what if the Democrats win control of the United States Senate in November and Joe Biden is elected president?  Then everything changes.

The Constitution provides that the president nominates Supreme Court justices and the Senate provides “advice and consent” (confirmation.) In the 2016 case of Judge Garland, the Senate refused to take up the appointment, leaving the Supreme Court seat vacant for 400 days.  In the case of Judge Barrett, the Senate is rushing through confirmation in just a month.

While there is nothing unconstitutional in what Senate Republicans are doing, it does give hypocrisy a bad name.  They insisted no seat could be filled during an election year when it was Obama’s nominee, and then are rushing it through when it is Trump’s.

But what happens if just a week after Judge Barrett’s confirmation the people vote out President Trump and the Republican Senate?  According to the RealClearPolitics average of polls, Biden is on his way to a landslide 353 to 185 win in the Electoral College, and Democrats to a 51 to 49 majority in the Senate.

Should this occur certainly it could be said that the people have voted against the rushed confirmation of Judge Barrett?  And if so, what can the newly empowered Democrats do about it?

They cannot remove the new Justice Barrett, short of impeachment which would not happen.  Nor can they remove Justice Neil Gorsuch who took the seat for which Garland was nominated.  But fully within their constitutional power they can expand the number of Supreme Court justices from the current nine justices and give President Biden additional appointments to the court.  And that is exactly what they are going to do if they get control. 

This is called “court packing.”  It got a bad name when President Franklin Roosevelt tried it in 1937, and it has not been seriously considered since.  But Congress and the President may set the number of Supreme Court justices as they see fit, and the new Democratic Senate would be under tremendous pressure to add two new Supreme Court justices to balance the “tainted” seats the Republicans “stole”, a real tit for tat.  Would it be unseemly? Yes.  Would it be unconstitutional? No.  

To accomplish this would require deft management of the Senate Judiciary Committee where Feinstein would be chair if the Democrats win the Senate majority.  And the new Vice President Harris would have a tie breaking vote in the Senate if it came to that.  Surely Harris would play a big role in any Democratic strategy to expand the court, and Feinstein would be a key player.

Such “court packing” would cause a huge political battle; Republicans have worked for half a century to gain a majority of conservatives on the court, and now with Barrett they have succeeded.  Some of the more militant Democrats want Biden and Harris to add four new members, which would assure a liberal majority.  

That is probably a bridge too far, and there are moderate Democratic Senators like West Virginia’s Joe Manchin that will need to be convinced, especially if the Democratic majority in the Senate is a small one.  But Majority Leader Mitch McConnell worked wonders with a small Senate majority, and one should not doubt the ability of current Minority Leader Chuck Schumer to do the same.   

Schumer has another reason to go down this path. He is up for re-election in New York in 2022.  Many New York Democrats are now well to his left and two establishment Democratic congressmen lost their primaries in 2018 and 2020.  Schumer will feel intense pressure from the Democratic base to deliver a new Supreme Court.

For that to occur, Feinstein will need to shepherd it through the often fractious and very partisan Senate Judiciary Committee.  Feinstein will turn 88 on June 22, 2021.  Will she by up to guiding a controversial court packing plan through her committee?  If there is a President Biden and a Senate Majority Leader Schumer, count on a court packing battle that will make this month’s Barrett confirmation seem like child’s play.