Yesterday evening I wrote that the only appropriate response to the Republican Senate putting another Federalist Society pretty boy on the Supreme Court (or, really, anyone other than Merrick Garland) would be to revisit 28 USC §1, i.e., passing a simple statute to increase the size of the court and thereby dilute its right-wing majority. This was also Josh Marshall's first thought:
We are here because of the Republican party’s increasing unwillingness to accept limits on political action. To up the ante on that tendency, to meet it, is itself a grave threat to democratic governance. But an even graver threat is to remove any mechanism of consequences or accountability. Then there is truly no limit or disincentive to corruption, law breaking and bad action. That reality is precisely the one in which we currently find ourselves.
In war or in sports or really any kind of contest you never let the other side hold all the initiative. You can say that McConnell and Trump shouldn’t take this step, that the American people should get to decide. Because the reality is they can take this step. So what will you do when they do that? The answer is you take the clearest and most economical step to undo the corrupt act. Adding new Justices is the way to do that.
Make this new corruption a centerpiece of the campaign, hold it over the heads of embattled Republican senators, try in every way to get a just result, which is to put this in the hands of the next President and Congress. But make clear that if it happens Democrats will undo it next year if the people give them to power to do so.
The Washington Post's Jill Filipovic makes the same points:
Democrats have only one play here: If Trump and McConnell jam an appointee through, it is not enough for Democrats to raise hell about the hypocrisy, the duplicity and the Republican refusal to play by McConnell’s own rules. It is not enough to target every Republican senator who goes along. It is not enough to have voters bombard their Republican senator’s office with phone calls and protests. Because those things have been happening for four years, and none of them have persuaded the GOP to put the stability of the country or the obligations of office ahead of that party’s thirst for power.
So Democrats should threaten to pack the court. And, if McConnell pushes through a new justice and then Joe Biden wins, they should follow through.
Our party has to hold the line here. Another ultra-right-wing Associate Justice will cement the power of the right wing for another 30 years, prevent us—the clear majority—from passing any meaningful legislation when we do re-take power in January, and contribute to the loss of faith in the institutions of government. All three of these outcomes are exactly what Senate Majority Leader Mitch McConnell has worked his whole career to accomplish. Even if Amy McGrath takes his seat, he will have won.
Except for this one little thing: Article 1 of the Constitution gives Congress the power to set the Supreme Court's size and jurisdiction. We can counter all these things with simple legislation requiring only a majority in Congress.
The Speaker and the Senate Majority Leader need to get out in front, now, and rhetorically pump that shotgun. Sure, go ahead and put one of Brett Kavanaugh's frat bros on the Court. President Biden will have Merrick Garland and three other liberals in the four new seats Congress will create before the end of March.
I've sent notes to Senator Richard Durbin (D-IL) and Senate Minority Leader Chuck Schumer (D-NY) making these points.
(Note: I have contributed money to both Joe Biden's and Amy McGrath's campaigns.)