Senator Tom Cotton (R., Ark.) on early Friday morning attempted to get Democrats to go on the record over the issue of court-packing during the Senate’s 15-hour budget reconciliation vote.
Cotton’s proposal came roughly eleven hours into the Senate’s vote-a-rama, in which any senator had the ability to file an amendment to the budget resolution, as Democrats look to move forward with passing President Biden’s $1.9 trillion COVID relief plan without Republican support.
Democrats avoided a vote on Cotton’s amendment, citing the Byrd rule, which says anything passed during budget reconciliation must have to do with the federal budget.
“Come to think of it, should we be changing the Senate rules in the budget resolution?” asked Senator Dick Durbin (D., Ill.), chair of the Judiciary Committee.
Cotton fell short of the 60 votes needed to waive the law.
If the Arkansas Republican had been successful, the Amendment could have given the GOP a foothold in the Senate rules to challenge legislation that would grow the high court beyond nine judges going forward. It would have added to the Senate rules that it was out of order to consider such legislation, making it so three-fifths of the Senate would be required to vote to overturn that rule if a senator wanted to debate such a bill.
“Many Democratic politicians, to include Joe Biden, to include a few senators in this chamber tonight, contorted themselves, twisting themselves into pretzels on the campaign trail to simply say we ought not pack the Supreme Court because we don’t like their rulings,” Cotton said in proposing the amendment.
Cotton called the Democrats’ move to sidestep a direct vote on his amendment more “contortions to avoid taking a simple stance on this issue.”
“So I would invite my Democratic colleagues who have said they don’t want to pack the court, simply waive this point of order and let’s have an up-or-down vote on one of the most fundamental tenets of the rule of law,” Cotton said.
Court packing became a hot button topic on the campaign trail as progressives called to expand the court after Republicans moved to confirm judge Amy Coney Barrett to the Supreme Court just weeks before Election Day. Barrett’s confirmation gave the Court a conservative majority.
Barrett’s confirmation, which Democrats saw as hypocritical in light of Republicans’ refusal to allow former President Barack Obama’s Supreme Court nominee Merrick Garland to receive a confirmation hearing in 2016, sparked calls to pack the court.
Biden and Senate Democrats have remained elusive on the issue, sidestepping questions on whether they would support expanding the court.
Biden never gave a definitive answer on the issue, instead vowing to create a commission to study potential court reforms.
Durbin hit back against Cotton’s proposal, saying: “The Constitution does not stipulate the number of Supreme Court justices. That’s up to Congress.”
“Congress has a long history of altering the makeup of the court,” he added. “For the record, there is exactly one living senator who has effectively changed the size of the Supreme Court: That’s Senator McConnell, who shrank the court to eight seats for nearly a year in the last year of the Obama presidency.”