Top Biden DOJ Appointee Open to Court Packing: ‘Nothing Is Off the Table’

In this May 26, 2015 file photo, Vanita Gupta, the head of Justice Department's Civil Rights Division, speaks in Cleveland. Justice Department lawyers investigating police agencies for racial discrimination and excessive force are increasingly finding a different problem: officers’ interactions with the mentally ill. (AP Photo/Tony Dejak, File)
AP Photo/Tony Dejak, File

One of president-elect Joe Biden’s top Department of Justice (DOJ) nominees previously expressed openness to packing the United States Supreme Court.

After the death of Associate Justice Ruth Bader Ginsburg last year, Vanita Gupta claimed that the Trump administrations’s push to fill the seat could force Democrats to break old precedents for the sake of “democracy.”

“Nothing is off the table,” Gupta told the Associated Press, specifically noting the recent embrace among progressives of packing the Supreme Court. “The legitimacy of the court and our democracy is at stake.”

Gupta, whom Biden plans to nominate to the position of associate attorney general, made the argument to the Associated Press in her position as the president of the Leadership Conference on Civil and Human Rights. The group, which was founded in the 1950s to push for civil rights, has expanded in the half-century since to be one of the nation’s largest special-interest groups backing liberal causes.

At the time of Gupta’s comments President Donald Trump and then-Senate Majority Leader Mitch McConnell (R-KY) were moving forward with filling the vacancy caused by Ginsburg’s passing. The prospect of a cemented six-to-three conservative majority on the Supreme Court pushed Democrats into obstructing the confirmation proceedings.

Senate Democrats, in particular, hoped to delay the confirmation of Trump’s nominee, then-Judge Amy Coney Barrett, until January 2021 when a new administration would take office. That strategy, however, failed after the Senate Republicans opted to stand united behind Trump.

Throughout the entire process, progressives and congressional Democrats claimed that if Trump were to succeed in filling Ginsburg’s seat, then court packing would be a viable option. The proposal, which failed the last time it was tried by President Franklin Delano Roosevelt in the late-1930s, would expand the number of justices on the Supreme Court.

Many on the left, including House Judiciary Chair Jerry Nadler (D-NY), endorsed court packing, claiming the GOP’s nomination of Barrett lacked “legitimacy” and was “undemocratic.”

Gupta, as her comments in the Associated Press indicate, appeared to agree that at least court packing should be considered to prevent a conservative majority on the nation’s highest court. At the time of Gupta’s remarks, her organization was also attempting to build a broad coalition to defeat Barrett.

The group not only mobilized 150 progressive organizations to lobby on behalf of Barrett’s defeat, but it also led rallies and protests in front of the Supreme Court opposing confirmation.

While Gupta was expressing openness to packing the Supreme Court and her organization was working to oppose confirmation, Biden was refusing to discuss the topic in-depth. Although the president-elect came out against Republican’s filling Ginsburg’s seat, Biden ignored questions about court-packing right up until Election Day.

“You’ll know my opinion on court-packing when the election is over,” Biden told reporters during a campaign swing through Arizona in mid-October.

Despite the promise, the president-elect has not declared a clear position on the issue. Biden has, however, promised to appoint a bipartisan commission to study judicial reforms.

The president-elect’s transition team did not respond to requests for comment on this story.


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