New York Rep. Jerry Nadler called on Senate Democrats to pack the Supreme Court with more justices if President Trump prevails in choosing the late Justice Ruth Bader Ginsburg’s replacement.
“If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court,” the Democratic chairman of the House Judiciary Committee said on Twitter.
If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court. 1/2 https://t.co/BDYQ0KVmJe
— Rep. Nadler (@RepJerryNadler) September 19, 2020
Nadler’s comments came in response to Politico reporter Jake Sherman, who pointed out that it is possible for Trump to replace the late justice even if the Republican Party were to lose both the White House and Senate in November.
“Filling the SCOTUS vacancy during a lame duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials,” Nadler said in a second tweet. “Congress would have to act and expanding the court would be the right place to start.”
Filling the SCOTUS vacancy during a lame duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials. Congress would have to act and expanding the court would be the right place to start.
— Rep. Nadler (@RepJerryNadler) September 19, 2020
Ginsburg, who died on Friday from cancer complications, was one of the Supreme Court’s most dependable liberal justices. If Trump succeeds in confirming her replacement with a more conservative justice, it would give conservatives a commanding 6-3 advantage in the nation’s highest court.
While the court’s headcount has stood at nine since 1868, there is no constitutional requirement that it stays that way. If Democrats were to control the White House and both chambers of Congress next year, legislation could be passed to expand the number of justices.
Such a move has been proposed in the past, most notably when President Franklin D. Roosevelt grew frustrated with the court blocking much of his New Deal legislation during the Great Depression.
In 1937, Roosevelt introduced legislation that could have expanded the court up to six new justices for every current justice over 70. Ultimately, the idea was rejected by members of his own party.
More recently, Democratic vice presidential candidate Kamala Harris indicated she was open to the idea of expanding the court after Justice Brett Kavanaugh was confirmed in 2018.
“We are on the verge of a crisis of confidence in the Supreme Court,” Harris said last year. “We have to take this challenge head on, and everything is on the table to do that.”
But Democratic presidential candidate Joe Biden has been reluctant to embrace the idea.
“No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” Biden said in July 2019.
