(WASHINGTON) — The Judiciary Act of 2021 is co-sponsored by Democratic lawmakers, including House Judiciary Chairman Jerrod Nadler, D-N.Y., Sen. Ed Markey, D-Mass., Reps. Hank Johnson, D-Ga., and Rep. Mondaire Jones, D-N.Y.
The bill would “restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans led to its current composition,” Nadler said in a statement.
“We are not packing the Supreme Court, we are unpacking it,” Nadler said at a news conference unveiling the bill in front of the Supreme Court Thursday.
Democrats are still angry that President Barack Obama’s court nominee, Merrick Garland, was blocked by Senate Republicans for nearly a year and never given a hearing, as well as the rushed confirmation of President Donald Trump’s nominee, Amy Coney Barrett, just before last November’s election.
“Republicans stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Markey said in a statement. “Of all the damage Donald Trump did to our Constitution, this stands as one of his greatest travesties. Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women, and our immigrant communities.”
Markey and other Democrats argue that expanding the court will help Americans see it as “impartial.”
“We are here today because the United States Supreme Court is broken. It is out of balance, and it needs to be fixed. Too many Americans view our highest court in the land as a partisan, political institution, not our impartial, judicial branch of government,” Markey said at the news conference. “Too many Americans have lost faith in the court as a neutral arbiter of the most important constitutional and legal questions that arise in our judicial system and I’m disappointed to say too many Americans question the court’s legitimacy.”
Nadler argued that given the fact that there are now 13 federal appeals courts, it is logical to have 13 justices to oversee the corresponding circuits, as had been the case previously.
Republicans have already taken issue with the bill, with Sen. Tom Cotton, R-Ark., saying it will “destroy the court” in a tweet Wednesday night.
“The Democrats will do anything for power,” Cotton said.
Other GOP senators have been tearing into the bill. Sen. Lindsey Graham, R-S.C., said Thursday that it was a “terrible idea.” Senate Majority Leader Mitch McConnell lambasted the plans on the Senate floor Thursday, accusing Democrats of “threatening judicial independence from the steps of the court.”
“The left want these swords dangling over the Senate and state legislatures and independent judges,” McConnell said. “The threats are the point. The hostage-taking is the point. And responsible people across the political spectrum have an absolute duty to denounce this.”
House Speaker Nancy Pelosi also shot down the proposed bill.
“I have no plans to bring it to the floor,” she told reporters at her weekly news conference.
Even Senate Judiciary Committee Chairman Dick Durbin, an Illinois Democrat, said Thursday that he was “not ready to sign on yet,” to the bill. He said despite concerns about the current state of the Supreme Court, he wants a response that is “reasonable.”
“I’m concerned both by the current situation which I believe was influenced by the McConnell decision to keep that vacancy open until Trump could fill it. Conscious design to control the future of the court. I wasn’t happy with that and I’ve said so,” Durbin said. “I want to make sure that our response to that is reasonable.”
The measure, with an already narrow path to passage, may hit a roadblock in the House where Democrats can only afford to lose two votes on any party line action.
The White House declined to comment on the proposal Thursday, but President Joe Biden has previously said that court packing is a, “bonehead idea,” and a “terrible, terrible mistake.”
“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want,” Biden told the CBS News program 60 Minutes, in October 2020. “Presidents come and go. Supreme Court justices stay for generations.”
While Congress has the power to change the makeup of the court, in order to pass the bill they propose, as even Democrats concede, they would have to abolish the filibuster, a complex Senate rule that requires 60 votes to move forward on most legislation. That is unlikely as moderate Democrats like Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., have said they would not support ending the filibuster.
Biden, under pressure from progressive Democrats, last week announced a commission to study the expansion of the court — signing an executive order creating a 36-member bipartisan panel to report back within six months on increasing the number of justices and potential term limits.
“I support the president’s commission to study such a proposal,” Pelosi said. “I don’t know that it’s a good idea or a bad idea, I think it’s an idea that should be studied.”
McConnell, though, called it a “pseudo-academic commission,” saying it is “just an attempt to clothe this transparent power play in fake legitimacy.”
Demand Justice, a key progressive group pushing to expand the court, strongly backed the Democrats’ bill.
“This bill marks a new era where Democrats finally stop conceding the Supreme Court to Republicans. Progressives understand we cannot afford to wait six months for an academic study to tell us what we already know: the Supreme Court is broken and in need of reform,” Demand Justice Executive Director Brian Fallon said in a statement.
“Our task now is to build a grassroots movement that puts pressure on every Democrat in Congress to support this legislation because it is the only way to restore balance to the Court and protect our democracy,” Fallon said.
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