During a Facebook Live Q &A session hosted by WMUR’s Adam Sexton, Sen. Jeanne Shaheen told viewers she did not support packing the U.S. Supreme Court. She does, however, support Democratic efforts to label filling judicial vacancies as “court-packing,” a notion rejected by virtually every legal scholar and political historian.
“I don’t support packing the court, although I have to say I think that’s exactly what [Senate Majority Leader] Mitch McConnell and Donald Trump have done,” Shaheen said. “But no, I don’t think expanding the number of judges on the Supreme Court is a good thing to do.”
Shaheen’s statement stands in marked contrast to her party’s presidential nominee, former Vice President Joe Biden, who said over the weekend that not only will he not answer the court-packing question before Election Day (“you’ll know my position on court-packing the day after the election”) but the voters “don’t deserve to know” his position.
“Well, sir don’t the voters deserve to know…?” reporter Ross DiMattei of KTVN in Las Vegas asked Biden.
“No, they don’t,” Biden replied.
“It’s grotesque that Vice President Biden won’t answer that really basic question,” GOP Sen. Ben Sasse said in an appearance on Fox News Sunday. “And it isn’t just one branch of government, what they’re really talking about or refusing to talk about, is the suicide bombing of two branches of government.”
Shaheen’s claim that Republicans have already packed the court may be out of step with the facts, but it’s in lockstep with the messaging from her fellow Democrats.
“The American people have watched the Republicans packing the court for the past three and a half years, and they brag about it,” Sen. Dick Durbin (D-Ill.) said on NBC’s “Meet the Press. “We are dealing with people on the court, packing into the court, with little or no qualifications for a long time.” Durbin is the top Democrat on the Senate Judiciary Committee and the third-ranking Democrat in the Senate.
Discussing the upcoming hearings on the nomination of Judge Amy Coney Barrett this weekend, Sen. Christopher A. Coons (D-Del.) also called filling a vacancy on the SCOTUS “court-packing.”
“We shouldn’t be having this hearing with two members of the committee infected with COVID,” Coons said. “It’s rushed, it constitutes court-packing.”
And then there’s the nominee himself: “Look, the only court-packing is going on right now. It’s going on with the Republicans packing the court now. It’s not constitutional what they’re doing,” Joe Biden said during a trip to Pennsylvania.
The Democrats’ definition of court-packing doesn’t comport with any legal authorities or common usage. As the left-leaning New York Times wrote last month: “Expanding the court — or court-packing — is an idea commonly associated with President Franklin D. Roosevelt, who pushed legislation in 1937 that could have broadened the Supreme Court from nine to as many as 15 justices.”
From the National Constitution Center in Philadelphia, PA:
“Some Democrats would consider using congressional powers to change the number of Justices on the Court if they were to regain control of the White House and both chambers of Congress in 2021. In one past incident in 1937, such efforts were called ‘court-packing’ and proved to be unpopular.”
The number of Supreme Court Justices has not changed under President Trump, or any other president going back to President Ulysses S. Grant in 1869. So why is Shaheen accusing McConnell and Trump of doing something they clearly aren’t?
“This is so Orwellian,” writes the DailyBeast’s Matt Lewis. “It’s like they decided, ‘People don’t like court-packing, so let’s just redefine what that term means.'”
Shaheen’s office did not respond to requests for clarification.