Law & the Courts

Swing-State Dems Come Out against Court Packing

Senator Mark Kelly (D., Ariz.) arrives before the start of opening arguments in the impeachment trial of then-President Donald Trump on Capitol Hill in Washington, D.C., February 10, 2021. (Jonathan Ernst/Reuters)

A group of swing-state Democrats has expressed skepticism or outright opposition to the progressive wing’s court-packing proposals.

Senator Mark Kelly, representing the swing state of Arizona, told Politico “the more responsible thing to do is to keep it at nine justices.”

“I don’t think the American public is interested in having the Supreme Court expanded,” said Colorado Senator Michael Bennet.

Nevada Senator Catherine Cortez Masto said she opposes “adding seats that politicize the court.”

As other liberal agenda items, such as election and police reform, continue to gain traction, expanding the Supreme Court is a controversial or dead issue among key Senate Democrats, especially for those facing reelection in 2022, as Kelly, Cortez Masto, and Bennet are.

Hawaii Senator Brian Schatz said, “This is in the category of things that couldn’t muster 50 votes and probably couldn’t muster 40 votes.”

“We have a historic opportunity to make change here and we should focus on those issues where we can get a majority,” he said.

Virginia Senator Tim Kaine, former running mate to Democratic candidate for president Hillary Clinton, says he was “not persuaded” on court packing.

Court-packing became a progressive initiative after former President Donald Trump confirmed three conservative justices to the high court. The proposal, introduced by Massachusetts Senator Ed Markey, Representatives Jerry Nadler (D., N.Y.), Hank Johnson (D., Ga.), and Mondaire Jones (D., N.Y.), would expand the bench from nine justices to 13.

“The momentum for this effort is going to grow. Especially if the court does drift dramatically, in a direction which is overturning progressive precedent after progressive precedent,” Markey said in an interview.

Florida Senator Rick Scott, chair of the National Republican Senatorial Committee, suggested that the GOP is capitalizing on the court-packing hype before the 2022 midterms as a way to target Democratic candidates.

Scott said, “I can tell you we do our work over at the NRSC and it’s resonating. The public doesn’t like it. Republicans and Democrats, neither of them like it.”

In wake of Justice Ruth Bader Ginsburg’s death, President Joe Biden has established a 36-member commission to examine court reform. Senate Democrats say they’re waiting for the commission’s recommendation. Ginsburg opposed court expansion, and liberal Justice Stephen Breyer said he believed that adding seats would only undermine the institution’s independence and credibility in the eyes of the American public.

Former Senate Democratic Leader Harry Reid of Nevada instructed Democrats to be “very, very careful in saying we need to expand the Supreme Court.”

The number of justices on the Supreme Court has remained constant at nine since the late 19th century.

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