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Democrats Threaten to Retaliate If McConnell’s Senate Fills SCOTUS Vacancy in Election Year

Senate Democrats are alerting their GOP counterparts that any attempts to try and fill a possible vacancy on the U.S. Supreme Court before the presidential election will be met with consequences. With Democrats’ eyeing chances of taking control of the upper-chamber of Congress, several sitting senators told NBC News they would be open to structural reforms – including “packing the court” – if Republicans were to fill any vacancies on the high court in an election year.

“If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability,” Sen. Tim Kaine (D-VA) said in an interview with NBC News. “I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that.”

At the heart of the conflict is the way Senate Republicans prevented President Barack Obama’s Supreme Court nominee Merrick Garland from getting a hearing 2016. Obama nominated Garland on March 16, 2016, more than nine months ahead of that year’s election, but Republicans refused to consider his candidacy, with many declining to even meet with him. In stopping the nomination from going forward, Senate Majority Leader Mitch McConnell (R-Ky.) infamously reasoned that “the American people should have a say in the court’s direction.”

Asked about filling a hypothetical seat on the court in May, McConnell unambiguously said, “Oh, we’d fill it.”

Chairman of the Judiciary Committee Lindsey Graham (R-S.C.)—who recently pleaded for older judges to retire so younger conservative judges could take their place—also said he’d be “willing” to fill such a vacancy.

In addition, Sen. Jonie Ernst (R-IA) said last month she would support rushing to appoint a new justice in a November or December “lame duck” session of Congress—even if President Donald Trump loses the election, and even if Senate Republicans lose control of that chamber of the legislature.

Speculation on the issue has especially been at the forefront of U.S. politics since Justice Ruth Bader Ginsberg, the 87-year-old leader of the court’s liberal bloc, revealed that her cancer had returned. Prior to that news, however, rumors were floated that maybe Justices Clarence Thomas or Samuel Alito might consider now a good time for retirement.

“We knew basically they were lying in 2016, when they said, ‘Oh, we can’t do this because it’s an election year.’ We knew they didn’t want to do it because it was President Obama,” said Kaine, then-candidate Hillary Clinton’s pick for VP.

According to the report, the Democratic National Committee is preparing to unveil the party’s 2020 platform which will include language endorsing “structural court reforms to increase transparency and accountability”:

The draft language, reviewed by NBC News and expected to be approved later this month, denounces Republicans as having “packed our federal courts with unqualified, partisan judges who consistently rule for corporations, the wealthy, and Republican interests” and for “blocking a Democratic president from appointing a justice to the Supreme Court.”

Sen. Mazie Hirono (D-HI) stressed that this is an issue for Democrats regardless of whether Republicans actually try and appoint a justice.

“Regardless of whether they try to do it or not, there have already been discussions about what we can do with our courts to make them much more balanced in many ways,” Hirono said. “Because the majority of the judges are white, male, young, with a particular orientation, ideological orientation.”

[image via Drew Angerer/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.