Republicans are steamrolling Democrats on judges. But the question of whether to be as cutthroat as the GOP is already splitting the party as the 2020 campaign ramps up.
The left has been radicalized by the Republican offensive, with activists and several presidential candidates eager for payback against Senate Majority Leader Mitch McConnell the next time Democrats take power.
But centrist Democrats and the handful of institutionalists still roaming the Capitol want the party to set a different example than the GOP, not mimic it.
When you think about Merrick Garland and what McConnell has done to the Senate, theres a lot of feelings of vengeance and revenge," said Sen. Dick Durbin (D-Ill.), the No. 2 Senate Democrat. We just hope the better angels of our nature will prevail.
The party doesnt have to settle the question just yet. But if Democrats take the Senate and the White House in 2020, their choice will determine whether the party can begin to reshape the federal judiciary after President Donald Trump and the GOP spent years stocking it with young conservatives.
And if Democrats do decide to embrace the playbook deployed by their Republican counterparts, it will ensure the Senates unique traditions continue their long erosion.
"I wish we could also get back to 60 votes, said Sen. Doug Jones (D-Ala.), who needs to appeal to Republicans to win reelection next year. We need to aim higher. We need to get back to that. Restoring the 60-vote threshold to confirm nominees would make it even harder to bend the judiciary leftward.
Liberals, meanwhile, are weighing whether to gut the few bipartisan norms still standing by expanding the size of the Supreme Court and completely eliminating the ability of senators to have a say on judges from their home states.
Democrats should not play by a different set of rules from Republicans, argues Sen. Elizabeth Warren (D-Mass.), a 2020 candidate and member of Democratic leadership. We cant live in a world where the Republicans twist everything their way whether theyre in the majority or the minority and the Democrats just keep trotting along. Thats not working.
Democrats are still seething over McConnells decision to block Garland, President Barack Obamas Supreme Court nominee, from even getting a hearing. Theyre also mourning what they say is a breakdown of other Senate customs, particularly on the so-called blue slip process that allows each senator a chance to veto nominations for judges in their home states.
McConnell has prioritized the courts in a way thats essentially unheard of, first by stopping Obama from filling vacancies, then by prioritizing them over difficult legislative gambits. Hes also unilaterally changed Senate rules through the nuclear option to speed up confirmation of Trumps judges.
Even as Trump captured the nation's attention last week with his attacks on four Democratic congresswomen, the Senate quietly confirmed its record-setting 43rd circuit judge. Incredibly, there are now only four Circuit Court vacancies and Republicans are shifting to filling the lower, 111 District Court vacancies.
The aggressive push has left Democrats smarting and powerless until they can grab back power. They concede that theres not much they can do right now to stop Republicans from putting their stamp on the federal judiciary.