McConnell Is the ‘One Living Senator’ That Changed SCOTUS Size

  • Dick Durbin accused Mitch McConnell of shrinking the Court’s size when he blocked SCOTUS nominee Merrick Garland. 
  • The Democrat made the argument in response to GOP questions about court packing Ketanji Brown Jackson’s hearing.  
  • “There is exactly one living senator who has effectively changed the size of the Supreme Court,” Durbin said.

Senate Majority Whip Dick Durbin on Tuesday accused Senate Minority Leader Mitch McConnell, who has called on Supreme Court nominee Judge Ketanji Brown Jackson to reveal her views on “court packing,” of changing the court’s size when he blocked President Barack Obama’s 2016 Supreme Court nominee, Merrick Garland.

Several GOP lawmakers have said they want to hear Jackson’s thoughts on expanding the court’s size, so-called court packing.

“Another issue, which has come up to my surprise, and I’ve spoken to my Republican colleagues about their fascination with it, is the notion of the composition of the Supreme Court, which euphemistically is referred to as ‘court packing,'” Durbin, the top Democrat on the Senate Judiciary Committee, said Tuesday.

He then criticized McConnell over his refusal to consider Garland’s nomination for the Supreme Court to replace Justice Antonin Scalia following his death in February 2016.

“There is exactly one living senator who has effectively changed the size of the Supreme Court,” Durbin said. “That was the Republican leader, Senator McConnell, who shrank the court to eight seats for nearly a year.”

McConnell, then the Senate majority leader, rallied Republicans behind his argument that the Senate should not consider a Supreme Court nominee in a presidential election year and with a divided government, and instead wait for the winner of the race to fill the vacancy. Scalia’s seat remained open until President Donald Trump’s pick, Judge Neil Gorsuch, was confirmed to the court in April 2017. 

During his term, Trump appointed two more justices, Brett Kavanaugh and Amy Coney Barrett, cementing a 6-3 conservative majority on the nation’s top court. Progressive groups and some Democrats have decried the ideological tilt of the bench and have made calls to expand the court’s size to fix what they describe as an imbalance.

Republicans, opposed to such reforms, renewed their concerns over “court packing” this week as they considered Jackson’s nomination to the Supreme Court. Decisions about the court’s size are policy-making decisions and do not concern the judicial branch, but rather the legislative branch.

In response to questioning on Tuesday, Jackson stated that judges, especially one nominated for the Supreme Court, should not speak on “political issues.” Jackson has repeatedly made clear that she acknowledges the constraints of her judicial role and that she is not a policymaker.

“Again, my North Star is the consideration of the proper role of a judge in our constitutional scheme,” she said. 

Jackson said she agreed with how Barrett, in her own 2020 Supreme Court confirmation hearings, responded to a question about altering the size of the Supreme Court. 

“If we abandoned the long-standing historical practice and tradition of having nine justices, could that have an impact on the way the three branches of government interact with each other?” GOP Sen. Mike Lee of Utah asked Barrett at the time. 

“Possibly, but it’s difficult for me to imagine what specific constitutional question you’re asking. And of course, if there were one, I couldn’t opine on it,” Barrett said.

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