GOP senators demand Supreme Court nominee Jackson answer policy questions

Senate Republicans are demanding that President Joe Biden’s nominee to the U.S. Supreme Court, Judge Ketanji Brown Jackson, weigh in on a policy question: How many justices there should be on the Court?

But just two years ago, during confirmation hearings for former President Donald Trump’s final Supreme Court nominee, Judge Amy Coney Barrett, Republicans strongly objected to the idea that a judicial nominee should respond to questions on legislative matters

At Tuesday’s Senate Judiciary Committee confirmation hearing for Jackson, Biden’s nominee to replace retiring Associate Justice Stephen Breyer, the top Republican on the panel pressed her on the question of “court packing.”

Sen. Chuck Grassley (R-IA) noted that both Breyer and the late Justice Ruth Bader Ginsburg had opposed adding new seats to the Supreme Court. “Do you agree with Justice Breyer and Justice Ginsburg that court packing is a bad idea?” he asked.

“Respectfully, Senator, other nominees to the Supreme Court have responded as I will, which is that it is a policy question for Congress, and I am particularly mindful of not speaking to policy issues because I am so committed to staying in my lane of the system, because I just am not willing to speak to issues that are properly in the province of this body,” she said.

Other Republicans have also suggested that Jackson’s views on the question were essential to determining whether she should be confirmed.

Minority Leader Mitch McConnell told CBS News on Sunday that he’d “asked her to defend the Court” and publicly oppose court packing. “That would have been an easy thing for her to do, to defend the integrity of the court. She wouldn’t do that.”

On Monday, the National Republican Senatorial Committee put out a document accusing Jackson of favoring “Packing the Court with Liberal, Activist Judges” based on her unwillingness to state her policy view.

And Sen. Marsha Blackburn (R-TN) tweeted, “The American people have a right to know if Judge Jackson will capitulate to a growing chorus within the Democratic Party that is calling on Congress to pack the Supreme Court.”

The U.S. Constitution does not require that the number of justices on the Supreme Court be set at nine; it leaves the number to Congress and the president to set through legislation. The number of seats was originally six and was increased to nine after the Civil War.

As a Supreme Court justice, Jackson would have absolutely no role in making that legislative determination.

Two years ago, Republicans on the Judiciary Committee strongly opposed asking Supreme Court nominees about public policy, insisting during the 2020 confirmation hearings for Barrett that she should not be pressed on political questions.

“When politicians try to get judicial nominees to give their views on cases or to give their views on policies, to try to get them to pre-commit to certain outcomes in future Court cases, we are politicizing the Courts, and that is wrong,” argued Nebraska Sen. Ben Sasse.

“You, in fact, are not being reviewed for a legislative position or a policy-making position,” noted Utah Sen. Mike Lee. “You’re being reviewed for a position on our nation’s highest court, where you’ll be asked from time to time to decide cases based on the law and based on the facts.”

“She’s not a legislator. That’s our job,” said North Carolina Sen. Thom Tillis.

Barrett deflected political questions in those hearings, saying, “That’s been a matter of policy debate, and, obviously, that’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge.”

On Tuesday, Judiciary Committee Chair Dick Durbin noted, “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.”

The Illinois Democrat reminded colleagues that Barrett said she “could not opine” on court packing during her own confirmation hearing. “I do believe we should have rules and traditions and precedents,” Durbin added, “but we shouldn’t have a separate set of rules for Republican nominees and Democratic nominees.”

Published with permission of The American Independent Foundation.