OPINION: This article may contain commentary which reflects the author's opinion.
Judge Ketanji Brown Jackson refused to offer a direct answer on Tuesday when asked about packing the Supreme Court with liberal judges.
During her Senate confirmation hearing, Brown, who was nominated by President Joe Biden to replace retiring Justice Stephen Breyer, dodged a question about court-packing.
Below is a transcript of the exchange:
DURBIN: “Another issue which has come up to my surprise, and I have spoken with 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. I have said on the floor, and I will repeat it here, there is exactly one living senator who has effectively changed the size of the Supreme Court. That was the Republican leader, Sen. McConnell, who shrank the court to eight seats for nearly a year in 2016 when he blocked President Obama’s nomination of Merrick Garland. Now, that question on court-packing was posed to Amy Coney Barrett, justice on the court, when she appeared before this committee, she was asked about it. She said, and I quote, ‘Could not opine on it.’ And on many other policy issues, quote, ‘I will not express a view on a matter of public policy, especially one that is politically controversial, because that is inconsistent with the judicial role.’ I do believe we should have rules and traditions and precedents, but we shouldn’t have a separate set of rules for Republican nominees and Democratic nominees. So, Judge Jackson, if a senator were to ask you today about proposals about changing the current size of the Supreme Court, what would your response be?”
JACKSON: “Senator, I agree with Justice Barrett and her response to that question when she was asked before this committee. 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.”
Last year, the Presidential Commission on the Supreme Court voted in favor of approving its final report to President Joe Biden.
The 34-member commission performed a 180-day study of potential changes to the Supreme Court, including court-packing and setting term limits for justices.
The final draft of the 288-page report didn’t offer specific recommendations, but rather provided a summary of arguments for and against critical issues ranging from court-packing to judicial term limits.
Notably, the commission took “no position” on court-packing, which is the liberal idea of adding justices to the Supreme Court.
“Given the size and nature of the Commission and the complexity of the issues addressed, individual members of the Commission would have written the Report with different emphases and approaches,” the report’s summary read. “But the Commission submits this Report today in the belief that it represents a fair and constructive treatment of the complex and often highly controversial issues it was charged with examining.”
Regarding court-packing, the report said:
“No serious person, in either major political party, suggests court packing as a means of overturning disliked Supreme Court decisions, whether the decision in question is Roe v. Wade or Citizens United. Scholars could say, until very recently, that even as compared to other court reform efforts, ‘court-packing’ is especially out of bounds. This is part of the convention of judicial independence.”
“The commission takes no position on the validity or strength of these claims,” the report’s summary added. “Mirroring the broader public debate, there is profound disagreement among commissioners on these issues. We present the arguments in order to fulfill our charge to provide a complete account of the contemporary court reform debate.”
Kelly Shackelford, who serves as president, CEO, and chief counsel for First Liberty Institute, said in a statement: “The American public reject court-packing and any other attempt to destabilize the judiciary. Even after numerous polls show Americans reject court-packing, far-Left progressives are clearly trying to expand their political power under the guise of ‘court reform.’”
“Expanding the membership of the United States Supreme Court is nothing more than a transparent, partisan scheme to achieve purely political objectives and exercise raw power that must be rejected,” Shackelford added.