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, there's 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 doesn't 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 Senate's 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 can't live in a world where the Republicans twist everything their way whether they're in the majority or the minority and the Democrats just keep trotting along. That's not working."
Democrats are still seething over McConnell's decision to block Garland, President Barack Obama's Supreme Court nominee, from even getting a hearing. They're 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 that's essentially unheard of, first by stopping Obama from filling vacancies, then by prioritizing them over difficult legislative gambits. He's also unilaterally changed Senate rules through the "nuclear option" to speed up confirmation of Trump's 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 there's not much they can do right now to stop Republicans from putting their stamp on the federal judiciary.
But the party is tossing out ideas both within the Senate and on the 2020 trail for how to reverse Trump's influence on the courts, ranging from changes to the Supreme Court to pledging to only nominate judges who would uphold the landmark abortion ruling Roe v. Wade to pressing conservative groups like the Judicial Crisis Network to reveal their donors.
"I don't consider it vengeance," said Sen. Mazie Hirono (D-Hawaii). "I consider it doing something about the reality of what's happening to our courts."
Some Democrats see the prospect of changes to Senate tradition as a balancing act.
Sen. Amy Klobuchar (D-Minn.), a 2020 candidate and a member of the Senate Judiciary Committee, blamed Republicans for changing Senate rules and called many of Trump's nominees "really problematic." When asked if she would consider rotating or expanding the Supreme Court, Klobuchar said she was "open to looking at those" but also said that as president she hopes "to put forward good strong nominees that are going to follow the law and get [bipartisan] support."
But those who would lead the process say it makes little sense to make big plans until they win a majority.
"Our first job is to take back the Senate and then we'll discuss everything else," said Senate Minority Leader Chuck Schumer (D-N.Y.), who has no reason to spark a divisive fight within his caucus.
Sen. Dianne Feinstein (D-Calif.), who is in line to be Judiciary Committee chairman if Democrats win the Senate, said she hasn't "thought about it. Because that jinxes it for sure."
But Feinstein also signaled her reluctance to duplicating the GOP approach.
"I'm not into payback. I never have been. And I'd just do it as fairly as I possibly could, that's all," she said. Whether to sideline Republicans "has never been discussed. Much to our credit."
Feinstein's perspective is a source of frustration among progressive groups, which say that Democrats have conceded too much to Republicans on judges.
Brian Fallon, executive director of Demand Justice, a liberal advocacy organization focused on the courts, said that Feinstein should be using her leverage now as the top Democrat on the Judiciary Committee to remind Republicans that Democrats will borrow their tactics if and when they return to power.
"She won't say that, she won't threaten that, because she wants to preserve the option of punching ourselves in the face again and let Sen. Graham veto President Warren or President Harris' judicial picks," Fallon said, referring to Senate Judiciary Committee Chairman Lindsey Graham.
Another issue that's talked about less often on the national stage but is crucial on Capitol Hill is the blue-slip process.
Republicans have all but done away with that senatorial prerogative for circuit court judges, who represent multiple states, prompting a stark increase in "no" votes from Democratic senators, among the rank-and-file and presidential hopefuls.
Democrats are unsure whether they would restore that tradition to the appellate courts should they regain power or perhaps do Republicans one better and scrap the practice for lower level courts, too.
"My first instinct is to say we should go back to the blue slip but it's hard to say that after many years of Leader McConnell exercising his authority in ways that had been previously unexplored," said Sen. Brian Schatz (D-Hawaii). It's tough to think "that if and when we take the Senate back that we're supposed to think better of it and restore bipartisan traditions."
Other Democrats like Sen. Richard Blumenthal (D-Conn.) are more insistent about wanting to return to Senate tradition on blue slips.
"It ensures that judicial nominees respect the character and views of the areas where they serve and that the local bar has a say or impact because they know the nominees better than anyone else," said Blumenthal, a member of the Senate Judiciary Committee.
Republicans are skeptical that Democrats would even consider restoring the Senate's judicial traditions and have attacked them for being the first to go "nuclear." A Democratic majority eliminated the 60-vote threshold for most judicial nominees in 2013; McConnell triggered the nuclear option on Supreme Court justices four years later.
When asked if Senate Democrats would restore blue slips for circuit judges, Graham replied: "Absolutely not."
"They're the ones that changed the rules to go to the majority vote," Graham said. "We couldn't get 60 votes for anybody for the circuit court and the Supreme Court. Those days are over."
Just one Democratic senator remains who voted against the rules change in 2013, Sen. Joe Manchin (D-W.Va.), who echoes Jones' call to restore the 60-vote threshold.
While that's unlikely, the sharp divide within the caucus shows how difficult it will be to get 50 Democrats to endorse anything if they win back a narrow Senate majority.
"It's toxic now no matter what the party is," Manchin said. "Fifty-one votes is dysfunctional, 60 votes gets this place where it's supposed to be and lets the minority to participate and forces agreement. And now we don't have that."
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