Ethics & Public Policy Center

Confirming New Justices Is Not ‘Packing the Court’

Published in National Review Online on October 12, 2020

David Harsanyi has an excellent rundown on the homepage today of Democrats’ ongoing efforts to redefine “Court packing.” A quick recap of where things stand:

Joe Biden has said that he won’t announce whether he supports expanding the number of justices on the Supreme Court — otherwise known as packing the Court — until after he is elected. “You’ll know my opinion of court-packing when the election is over,” he told reporters on Thursday.

On Saturday, Biden doubled down, telling a reporter that voters “don’t deserve” to know whether he’d support packing the Court.

At last week’s vice-presidential debate, Biden’s running mate Kamala Harris refused to answer Mike Pence’s question about whether she or Biden supports packing the Court. Instead, she rather clumsily attempted to argue that confirming Judge Amy Coney Barrett to the Supreme Court constitutes court-packing and suggested that the lack of African-American judges on the appeals courts is another example of “packing the courts.”

In a Fox News interview yesterday, Senator Chris Coons (D., Del.) stated that if the Senate confirms Barrett to the Supreme Court, that “constitutes court-packing.”

Democratic senator Dick Durbin (D., Ill.) advanced a similar claim in an NBC News interview over the weekend when asked about Biden’s refusal to answer for his views on the subject. “It’s a common question being asked because the American people have watched the Republicans packing the court over the last three and a half years,” Durbin replied. “And they brag about it. They’ve taken every vacancy and filled it.”

As David writes, this effort to avoid answering for their views on court-packing is beginning to take the form of an Orwellian campaign to entirely redefine the meaning of “packing the Court,” which is widely understood to mean enacting legislation to expand the number of justices seated on the Supreme Court.

Notably, this redefinition campaign has not been exclusive to Democratic politicians. In yesterday’s Washington Post, columnist Ruth Marcus has an article entitled “Republicans have no standing to complain about court-packing,” in which she notes that “Republicans have stocked the court with one and soon two justices whose seats they were not entitled to fill” and asserts that “this is slow-motion court-packing in plain sight.”

But, of course, nothing that Republican senators have done to fill judicial vacancies during Trump’s entire time in office has even approximated “court packing.” Refusing to hold hearings for President Obama’s nominee Merrick Garland was an entirely legitimate choice and well in line with past precedent; it has been more than 100 years since a Senate confirmed a Supreme Court justice nominated by a president of the opposite party during an election year. Confirming a new justice during an election year is similarly in line with historical precedent when the Senate and White House are held by the same party.

Democrats are understandably angry that they don’t have the votes to prevent Barrett from being confirmed to fill Justice Ginsburg’s seat on the Court. They must not be allowed to get away with brazenly redefining terms and refusing to say whether they’ll upend a century and a half of tradition by expanding the size of the Supreme Court.

Alexandra DeSanctis is a staff writer for National Review and a visiting fellow at the Ethics and Public Policy Center.

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