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22 Oct 2020 15:51
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  •   Home > News > International

    Republicans are likely to win the battle to replace Ruth Bader Ginsburg. There are three things Democrats could do next

    With Republican senators lining up to call for a vote, and the President charging ahead to name a nominee, Democrats are likely to lose the fight to replace Ruth Bader Ginsburg. Here's what they could do next.

    Democrats probably won't be able to stop Donald Trump and the Senate replacing Ruth Bader Ginsburg on the Supreme Court.

    Without a majority in the Senate, Democrats always needed to rely on four Republicans to switch sides to stop it happening.

    They got two quickly, but in the days since the senators most likely to flip have slowly confirmed they plan to replace Ginsburg, and Trump plans to announce his nominee on Saturday (local time).

    So if Democrats can't stop this appointment, what's left for them to do?

    There are three movesalready being talked about. All are considered significant, norm-shattering changes to the US system of government. But facing a 6-3 conservative majority in the Supreme Court that could potentially block their agenda for decades, some Democrats are arguing that now is the time to go big.

    1. Adding more justices to the Supreme Court

    The US Supreme Court has nine justices.

    But it didn't always (it's had 6, 7, 9 and 10 justices at various points in history) and the US constitution doesn't say anything about how many justices should be appointed.

    So if Democrats are handed a 6-3 conservative majority in the court, they can add more justices to tip the balance in their favour. It's called packing the Supreme Court.

    This is not the first time it's been suggested. In 1937, president Franklin Roosevelt proposed increasing the Supreme Court to 15 justices, but never went through with it.

    To do it, they'd need to be in control of the House, the Senate and the White House. But after that it's simple — they just need to pass a federal law.

    While the mechanics of it are simple, the politics of it wouldn't be.

    There would be fierce criticism from Republicans, and it's a proposal that not even every Democrat is behind (including the man they want to put in the White House, Joe Biden).

    Ginsburg herself outlined the dangers of packing the court in a 2019 interview with NPR.

    "If anything it would make the court look partisan. It would be one side saying: 'When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to.' "

    That hasn't stopped prominent elected Democrats and progressive activists using this moment to spark the conversation about packing the court anyway.

    2. Adding more states to the United States

    The US Senate has long faced criticism that it doesn't fairly reflect the will of the American people.

    While the House of Representatives works on a system of proportional representation (the higher a state's population, the more representatives and power it has in the House), the Senate simply has two senators for each state.

    It means that when it comes to the Senate — which makes big, nation-altering decisions like confirming Supreme Court justices — minority, often rural states have equal sway compared to their bigger neighbours with higher populations.

    And those smaller states have sided with Republicans more often than not in recent elections (which is how Donald Trump won the presidency while losing the popular vote).

    To combat that, Democrats could add more states to the Union, which would add more senators to the Senate, pushing back on what some call "minority rule" in the US.

    Washington DC and Puerto Rico are the obvious and most discussed candidates to become the 51st and 52nd states. But more radical proposals include breaking up the biggest Democratic states with the most people, like California, to give voters more equal representation.

    Admitting another state to the Union only requires the approval of Congress (once the state-to-be asks, of course). Adding Washington DC and Puerto Rico would give Democrats a chance to reverse experts' dire predictions that the party is more likely to lose the Senate than win it for generations to come.

    In turn, it'd give Democrats more power in those nation-altering decisions the Senate makes.

    But adding states to the Union has been a messy and divisive process in the past.

    Hawaii and Alaska were the last states added to the Union in 1959, and the consequences of adding more has meant the issue has remained much talked about, but rarely seriously considered since.

    3. Removing the filibuster

    Let's say Democrats win a clean sweep in November — the House, the Presidency and a narrow majority in the Senate.

    If they want to pass either of the above ideas there's something massive standing in their way — the filibuster.

    It's a procedural quirk that essentially means a 41-vote minority of the 100-vote US Senate can block reforms on a whole bunch of issues (likely including things like packing the court or adding states).

    To pass the Senate and become law, most things require a simple majority, with the vice-president stepping in to break a tie.

    Removing the filibuster would apply that simple majority to everything, and remove the ability for a minority party to frustrate the agenda of the elected majority.

    But it's the same reason some Democrats are cool on the idea (including Joe Biden). It might seem like a good idea when you're in power, but when you're not you'll wish you didn't get rid of it.

    But they've got support from an unlikely corner for this proposal — Donald Trump.

    Making the change wouldn't be easy, but in the face of more losses like the one they're about to endure to replace Ginsburg, Democrats might be convinced to take the leap.

    © 2020 ABC Australian Broadcasting Corporation. All rights reserved

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