Supreme Court nominee Ketanji Brown Jackson repeated her refusal to weigh in on court-packing during her Tuesday confirmation hearing, while comparing her position to that of Associate Justice Amy Coney Barrett.
During pre-hearing meetings, Jackson reportedly refused to offer an opinion on court-packing while speaking with Senate Minority Leader Mitch McConnell. Several Republican senators brought up congressional expansion of the Supreme Court during their opening statements Monday, noting that Democrats on the committee, most notably Rhode Island Sen. Sheldon Whitehouse, support doing so.
Senate Judiciary Committee chairman Dick Durbin noted that now-Associate Justice Barrett declined to answer questions on court-packing when she appeared before the committee in 2020, saying at the time that it would be inappropriate for her to weigh in on a public policy question. The late Associate Justice Ruth Bader Ginsburg, as well as retiring Associate Justice Stephen Breyer, publicly opposed court-packing while sitting on the Supreme Court.
When asked by Durbin, Jackson said that court-packing was beyond her purview, so she would not weigh in on the issue.
“I agree with Justice Barrett in her response to that question when she was asked before this committee,” Jackson said. “Again, my North Star is the consideration of the proper role of a judge in our constitutional scheme. In my view, judges should not be speaking to political issues, and certainly not a nominee for a position on the Supreme Court. So I agree with Justice Barrett.”
“There is exactly one living senator who has effectively changed the size of the Supreme Court,” Durbin said, arguing that McConnell’s refusal to confirm Merrick Garland to the Supreme Court in 2016 was effectively court-packing. (RELATED: ‘We’re Unpacking It’: Jerry Nadler Defends Legislation To Expand Supreme Court)
Democrats have repeatedly claimed that Republicans were the ones to pack the Supreme Court through their refusal to confirm Garland, as well as their confirmation of Barrett shortly before the 2020 election. They have also threatened to expand the Court if it did not issue left-wing rulings on issues such as abortion and gun control.
During 2020 hearings on a Louisiana abortion law, Senate Majority Leader Chuck Schumer claimed that Associate Justices Neil Gorsuch and Brett Kavanaugh “released the whirlwind, and you will pay the price.” He threatened that they would not “know what hit you if you go forward with these awful decisions,” in an apparent reference to court-packing. Republican Nebraska Sen. Ben Sasse called the comments “weird” during his opening statement Monday.
The conservative group Judicial Watch filed an ethics complaint against Whitehouse in 2019 after he wrote in an amicus brief that the Court should “heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.'”