But if Republicans insist on filling Ginsburg's seat with some Federalist Society drone, it totally changes the calculus, both for Biden and for the most right-wing Democratic senators. A 6-3 Republican majority on the Supreme Court would be much more likely to thwart Democratic policy initiatives than a narrow 5-4 majority in which Chief Justice John Roberts could still exert some moderating influence. A President Biden and his Senate, no matter how thin the majority, would come under enormous pressure to respond in kind to the GOP's ruthlessness. And the bloc of centrist Democratic senators would then have a much more compelling story to tell their constituents when they vote to add four or more justices to the Supreme Court.
After all, nothing in the Constitution prevents court-packing, just as nothing in our founding document prevented McConnell from blocking Garland's nomination. The effort to install a hard-right justice in Ginsburg's place would, if anything, lay bare the essence of the generational right-wing project to conquer the judiciary. It's not about principles, or election year exceptions, or fair play. It's about the exercise of raw power, and the determination to use as much of it as the legal order allows.
Do you think Democrats wouldn't expand the Court if McConnell and the Republicans insist on reneging on their own nonsense precedent from 2016? Think again. It wasn't long after the news broke before Sen. Ed Markey (D-Mass.)
announced on Twitter that, "Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court." Mark my words: this will be the Democratic Party's official line by the end of the weekend. The rage and fear will be so widespread that it will reach the party's cautious leadership, including Minority Leader Chuck Schumer (D- New York), who
has already come out against replacing Ginsburg before the election. They will present Mitch McConnell with a choice: You can plunge this country further into crisis by trying to fill this seat, but if you do it and then lose in November, there will be absolute hell to pay.
This is a fluid and fast-moving situation, but the bottom line is this: If Democrats hold firm and threaten massive escalation, they can stop McConnell from doing his worst here. If they fail, they can still win in November, and then remake the judiciary. While that might seem like cold comfort to those rightly afflicted by Ginsburg's death, it is better than despair. There's enough of that going around already.
https://theweek.com/articles/938534/why-democrats-shouldnt-panic-about-rbgs-death
