Democrats need not 'grin and bear it' on the Supreme Court -- but only if they win the Senate: Jeffrey Toobin

CNN chief legal analyst Jeffrey Toobin laid out his thoughts on the passing of Justice Ruth Bader Ginsburg in The New Yorker on Saturday.

"In Washington, grief yields quickly to calculation," Toobin wrote. "The broad outlines of the situation are already clear. Mitch McConnell, the Senate Majority Leader, announced within hours of Ginsburg’s death that he will make sure that a Trump nominee gets a vote in the Senate this year. The hypocrisy of his position is breathtaking. Antonin Scalia died on February 13, 2016, nine months before that year’s Presidential election. On that day, McConnell said that he would not allow a hearing or a vote on a nominee from President Barack Obama, because the next President should be allowed to make the choice."

Toobin explained why he believes McConnell could force through a nomination in 2020.

"If the answer is yes—if Trump fills the Ginsburg seat—the next question will be how the Democrats respond. If the Democrats fail to retake the majority in the Senate in November, their options are few except to grin and bear it," Toobin wrote.

If Democrats can seize the Senate, Toobin laid out a four-point plan for "retribution."

"But, if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution—which all happen to be good policy as well. The first is the abolition of the filibuster, which should have happened decades ago. Even in the minority, McConnell will do everything he can to thwart Biden, and the filibuster will be the tool. This antidemocratic relic should be retired once and for all," he wrote.

"Second, statehood for the District of Columbia and Puerto Rico, with two senators apiece, would be another appropriate rejoinder. Third, Congress should pass a law expanding the number of lower-court federal judges; that number has not increased since Jimmy Carter was President," he explained.

"Finally, the greatest and most appropriate form of retribution involves the Supreme Court itself. The number of Justices is not fixed in the Constitution but, rather, established by statute. If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court," Toobin explained. "To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that’s happened, that’s a game they should learn to play."