Dem leaders wary of liberal plan to expand high court
— Democratic Washington leaders on Thursday expressed opposition to a new proposal from a group of liberal lawmakers that would expand the Supreme Court from nine to 13 justices, underscoring tensions within the party over how to address concerns that the nation’s high court will remain reliably conservative for years to come.
The goal of the legislation, which was introduced in both chambers, is to allow Democrats to appoint more liberal justices by expanding the court’s size rather than waiting for vacancies to open up on the bench, a move Republicans derided as court-packing.
Speaker Nancy Pelosi, D-Calif., said she has “no plans” to bring the bill to the floor and that she supports a commission created by President Joe Biden that will produce a report later this year on possible changes to the Supreme Court, including court expansion and term limits.
Senate Judiciary Chairman Richard Durbin, D-Ill., whose panel has oversight of the judicial branch, also said he is not ready to support such legislation.
“Let’s think this through carefully,” he said. “I don’t question that my colleagues in the House and Senate have their own theories, and let’s have that conversation. But keep in mind the ultimate goal here is to make the historically proper choice for the administration of justice in the long term.”
The authors of the bill expressed confidence that wary leaders would soon come around.
“Speaker Pelosi is a very good judge of events and of history,” said House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., a sponsor of the legislation. He added that once the current court hands down more “destructive” decisions,
“Speaker Pelosi and others will come along.”
While Republicans have traditionally focused more on the importance of the Supreme Court as a way to energize their base of voters’ interests on social and religious issues, liberals in recent years have sought to make the makeup of the court a bigger concern within the Democratic Party. Many Democrats remain furious that Senate Republicans refused to consider President Barack Obama’s nomination of Merrick Garland for the court in 2016 because it was an election year but then pushed through President Donald Trump’s nomination of Amy Coney Barrett last year under similar circumstances.
Competing interests within the party — with liberals pushing for court expansion and moderates cautioning against setting such a precedent — has led Democratic leaders to take a cautious approach to changing the structure of the court.
Adding to the Democrats’ current anxieties is the question of whether liberal Justice Steven Breyer, 82, will soon retire, allowing Biden to nominate a like-minded successor while the party controls both the White House and the Senate. Biden has promised to fill any Supreme Court vacancy with a Black woman, which would make for a historic first.
Breyer has given no public indication of his plans, but bashed the idea of adding justices in a speech at Harvard Law School earlier this month where he warned of further politicizing the court.
“If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” he said.
The White House reacted cautiously to the proposal unveiled Thursday.
Biden “believes that members of Congress have the right to put forward legislation on issues they support,” White House spokeswoman Jen Psaki said. “His view is that he wants to hear from this commission that has a range of viewpoints.”
Republicans were quick to criticize the bill, calling it a power grab and an attempt to have the Supreme Court put in place the liberal policies the party has been unable to advance through Congress.
“Does power mean so much to you that absolute power corrupts absolutely, that you will change the courts to capture another form within a judicial power simply to control more,” House Minority Leader Kevin McCarthy, R-Calif., said at a news conference. He described the legislation as part of a “socialist” agenda and “plan to dismantle a government institution.”
Other Republicans noted past opposition to expanding the courts from Biden as well as Justice Ruth Bader Ginsburg, who died last year, opening the seat filled by Barrett.
“They obviously aren’t looking to Democrat-appointed justices, like Ginsburg, that said nine is the perfect number,” said Sen. Charles Grassley, who serves as the top Republican on the Judiciary Committee.
The sponsors of the bill — Nadler of New York, Sen. Edward Markey of Massachusetts, Rep. Hank Johnson of Georgia and Mondaire Jones of New York — said their proposal would not have been needed had then-Senate Majority Leader Mitch McConnell, R-Ky., not blocked Garland’s nomination in 2016 and then pushed through Barrett last year, tilting the balance of the court.
“Some people will say we’re packing the court,” Nadler said Thursday. “We’re not packing it. We’re unpacking it. Sen. McConnell and the Republicans packed the court over the last couple of years.”