Prominent Democrats Held Range of Opinions on Court-Packing

Sen. Markey on Court Packing, Then and Now
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Prominent Democrats have held a range of opinions on court-packing coinciding with the constant fluctuations of the political landscape, with some fiercely opposing the scheme in the past despite the newfound push from the radical left to expand the Supreme Court to 13 justices —  a move Sen. Ed Markey (D-MA) believes will “rightfully reflect the values of the majority of the American people.”

Markey, formally unveiling the legislation on Thursday alongside fellow Democrats, asserted the U.S. currently has a Court with a “stilted, illegitimate 6-3 conservative majority” which has “caused this crisis of confidence in our country.” Conservatives fundamentally question such statements, contending the claims of a “conservative” majority remain shaky, at best.

“These four new seats, to be filled by president Biden, will reconstitute the United States Supreme Court. The bench will then rightfully reflect the values of the majority of the American people on whose behalf they serve,” Markey claimed.

“We must expand the Court and we must abolish the filibuster to do it,” he said.

Democrats began ramping up their calls to expand the Supreme Court following former President Trump’s nomination of then-Judge Amy Coney Barrett, whom he appointed to replace the late-Justice Ruth Bader Ginsburg. However, many prominent Democrats, past and present, have held a range of opinions on the matter:

President Joe Biden:

While Biden offered coy answers on his views of court-packing in the weeks ahead of the 2020 presidential election, he adamantly opposed the move during his time as a senator, describing it as a “power grab.”

“He [FDR] wanted to increase the number of justices to 15, allowing himself to nominate those additional judges,” then-Sen. Biden (D-DE) said. “It took an act of courage on the part of his own party institutionally to stand up against this power grab”:

Although Biden admitted he is no longer a “fan of court-packing,” he has signaled an openness to it, stating on the campaign trail he would “cross that bridge when we get to it.”

During an October 60 Minutes interview, Biden vowed to put together what he described as a

…bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative, and I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it’s getting out of whack the way in which it’s being handled.

“It’s not about court-packing,” he said at the time. “There’s a number of things that constitutional scholars are debated, and I’d look to see what recommendations that commission might make.”

“The last thing we need to do is turn the Supreme Court into just a political football,” he added. “Whoever has the most votes get whatever they want. Presidents come and go. Supreme Court justices stay for generations.”

Harry Reid:

The former Senate majority leader warned against packing the Court this month, expressing an openness to a commission examining potential reforms but surmising the commission will “come back and disappoint a lot of people.”

“I think they’re going to come back and say, we should just kind of leave it alone,” he said, warning, “we’d better be very, very careful in saying that we need to expand the Supreme Court”:

Justice Stephen Breyer:

Liberal Supreme Court Justice Stephen Breyer recently warned against packing the Supreme Court, stating in an April Harvard Law School address that it could very well “diminish” confidence in the Court.

“If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches,” Breyer explained.

“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” he added.

Ruth Bader Ginsburg:

The late-Justice also rejected notions to expand the Court, telling National Public Radio’s Nina Totenberg in 2019, “It would make the Court look partisan.”

At the time, Democrat presidential candidates, including Sens. Elizabeth Warren (MA), Kirsten Gillibrand (NY), and current Vice President Kamala Harris, outlined their intentions to expand the Court to alter the balance of the Court in their party’s favor.

Former Attorney General Eric Holder:

In 2019, Holder floated the idea of the next president packing the Court.

“The Republicans have abused their power to give themselves an unfair advantage,” Holder said at the time. “It is necessary and totally appropriate to add seats.”

 Earlier this year, Holder encouraged Democrats to “use the power” of the majority to reform the Courts.

“It is painfully clear Democrats and progressives are uncomfortable with the acquisition and use of power, while Republicans and conservatives never have been. Our courts badly need reforms,” he said, accusing Republicans of absuing their power “to give themselves an unfair advantage.”

“It is necessary and totally appropriate to add seats,” he concluded.

Rep. Ro Khanna (D-CA):

The California Democrat on Thursday expressed opposition to his colleagues’ move to expand the court, explaining he supports term limits for Supreme Court Justices over Court expansion, warning, “if you try to expand it right now, that’s going to further polarize and tear apart this country.”

Vice President Kamala Harris:

While Harris toned down her view after Biden selected her as his running mate, dodging former Vice President Mike Pence’s inquiry on court-packing during last year’s vice presidential debate, she told the New York Times in a 2019 interview she was “absolutely” open to the idea:

Sen. Ed Markey (D-MA):

The senator, who introduced the legislation to expand the Court from nine justices to 13, appeared to hold a slightly different view in 2016, standing behind a sign reading “#WeNeedNine as the battle over Judge Merrick Garland’s nomination heated up, demanding lawmakers consider his nomination:

House Speaker Nancy Pelosi (D-CA):

While Pelosi told reporters on Thursday she had no immediate plans to bring the court-expanding legislation to the floor, she ultimately said it is not something that is completely “out of the question”:

She signaled an openness to the concept in October 2020, telling MSNBC she would “take a look and see” whether the U.S. should expand the size of the Supreme Court.

“In 1876, there were nine justices on the court. Our population has grown enormously since then. Should we expand the court? Well, let’s take a look and see. But not — and that relates to the nine district courts, maybe we need more district courts as well,” she added.

Sen. Kyrsten Sinema (D-AZ):

The Arizona lawmaker steered away from the far-left members last year, with her spokeswoman Hannah Hurley confirming, “Senator Sinema opposes court-packing.”

Sen. Bernie Sanders (I-VT):

In 2019, early on in the Democrat primary race, Sanders warned against packing the Supreme Court. As Reuters reported:

My worry is that the next time the Republicans are in power they will do the same thing, I think that is not the ultimate solution,” he said, opting to instead “consider proposals that created term limits for Supreme Court justices or would rotate judges between the highest court and the lower-level appeals courts.

Notably, during the primary, former Democrat presidential candidates, including Sen. Cory Booker (D-NJ), Sen. Kirsten Gillibrand (D-NY), Sen. Amy Klobuchar (D-MN), Sen. Elizabeth Warren (D-MA), Pete Buttigieg, Gov. Jay Inslee (D), and Andrew Yang, signaled an openness to expand the Court.

Senate Majority Leader Chuck Schumer (D-NY):

Schumer last year left the door open to the possibility of expanding the Supreme Court. When asked about adding additional justices, the New York Democrat reportedly said, “We first have to win the majority, because if we don’t win the majority, these questions are all moot.”

“But if we win the majority, everything is on the table,” he said of nixing the filibuster, something Markey said is necessary to make a Court expansion a reality.

Sen. Joe Manchin (D-WV): 

The West Virginia lawmaker, widely considered a moderate Democrat, vowed last year to oppose attempts to pack the Court.

“I commit to you tonight, and I commit to all of your viewers and everyone else that’s watching, I want to allay those fears, I want to rest those fears for you right now,” he said during a November appearance on Fox News’s Special Report.

“Because when they talk about, whether it be packing the courts or ending the filibuster, I will not vote to do that. I will not vote to pack the courts,” he added.

A September survey, taken as radical Democrats renewed their calls to expand the Court, found a majority of registered American voters favoring a “Keep Nine” amendment, which would establish the number of Supreme Court justices at nine, 62 percent to 18 percent.

Similarly, an October New York Times/Siena College survey found a majority, 58 percent, expressing the belief the U.S. should “not increase” the size of the Supreme Court.

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