Probably a smart answer in one sense — but not exactly a confidence-builder in another. Dick Durbin teed up a court-packing question for Ketanji Brown Jackson right out of the gate at her confirmation hearing, likely hoping to pre-empt Republican senators champing at the bit to air the issue. The Supreme Court nominee wisely declined to comment on the political question, but failed on demonstrating a grasp of precedent.
To be fair, though, Durbin set her up to fail in the question itself:
On court packing, Judge Jackson doesn't offer an opinion, agreeing with Justice Barrett's response to the topic.
"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." pic.twitter.com/f79LBlM46G
— CBS News (@CBSNews) March 22, 2022
DURBIN: 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 then-Judge Barrett said repeatedly she could not share her views. Stating, and I 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.’ … 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 in 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. And in my view judges should not be speaking into political issues and certainly not a nominee for a position on the Supreme Court. So I agree with Justice Barrett.”
There’s just one problem with that answer, Mitch McConnell’s office noted gleefully immediately afterward. Justice Barrett did answer the question asked about court-packing, but she was not asked about her specific position on it. Instead, Mike Lee posed the question as one of constitutionality, and Barrett replied that there wasn’t a constitutional issue at play:
SEN. MIKE LEE (R-UT): “Does the Constitution say anything about the size of the Supreme Court?”
THEN-JUDGE AMY CONEY BARRETT: “The Constitution does not. That is a question left open to Congress. It’s my understanding that it’s been nine for about 150 years, but that’s as a matter of statute, not constitutional requirement.”
SEN. LEE: “It’s statutory. It’s a statutory decision, one that’s stood for more than a century and a half. It’s a decision, nonetheless, that has some bearing, could have some bearing on constitutional issues, correct?”
JUDGE BARRETT: “Insofar as there would be more decision makers on the court?”
SEN. LEE: “Yeah, if we abandoned the long-standing historical practice and tradition of having nine justices, could that have an impact on the way the three branches of government interact with each other?”
JUDGE BARRETT: “Possibly, but it’s difficult for me to imagine what specific constitutional question you’re asking. And of course, if there were one, I couldn’t opine on it.”
SEN. LEE: “Of course, of course. There are strong reasons, I believe, why over the last more than a century and a half we’ve left that number at nine. As you point out, there’s nothing in the Constitution that requires it…. There are nonetheless good, prudential reasons, reasons having to do with respect for the separation of powers between the three branches of government, reasons that have over the last 150-plus years left us to leave that number at nine. The last time, as far as I can tell, that there was any serious effort to move the number above nine was in the fall of 1936 when President Franklin D. Roosevelt … proposed packing the court. And let me explain what I mean by packing the court here. What I mean when I refer to this is increasing the number of seats on the Supreme Court and doing so, by statute, with the intent of altering the composition of the court for short-term political gain. That’s what FDR wanted to do…. I think it would have been a colossal mistake. Joe Biden himself as a U.S. senator, as a member of this body, in a proceeding of this committee in 1983, gave a rousing speech that I recommend to all talking about that very thing, acknowledging that the Constitution doesn’t require it, but our respect for the separation of powers really ought to lead to us sticking to the number nine. Don’t pack the court.”
So yes, one can score a point on a technicality here, but that’s mainly on Durbin rather than Jackson. On the other hand, Barrett never did disclose her personal position on court-packing during her confirmation process, so Jackson is certainly following in her spirit, if not the explicit precedent. It’s not clear whether Barrett has clarified her personal position on it since either, although Stephen Breyer made his personal opposition to it well known before he announced his retirement.
Otherwise, this is pretty weak sauce as an attack line. Jackson’s comment about avoiding political questions in a confirmation hearing isn’t just business as usual (don’t forget that it’s called The Ginsburg Rule for a reason), but that nominees from presidents of both parties have followed that advice for decades. If the rule is named for Ruth Bader Ginsburg, it was inspired by the confirmation hearing for Robert Bork, whose frankness played a role in the failure of his confirmation.
In fact, if one wants to really argue this to its natural conclusion, Jackson’s correct to pass on it for the same reasons Barrett gave in her response, so helpfully provided by McConnell’s office. The size of the Supreme Court is set by Congress and the president in enabling legislation. That issue isn’t even mentioned in the Constitution. By declining to comment on a policy issue, Jackson is arguably demonstrating judicial restraint, at least in the moment. Furthermore, it’s highly unlikely that a Supreme Court governed by judicial restraint would take action against legislation that expanded the size of the court, so it’s a tangent at best.
We’ll keep an eye on other, more pertinent questions and answers from this hearing, but don’t kid yourselves. Unless Jackson conducts a spectacular faceplant, nothing will deflect her from a narrow confirmation, not even a few pointed political observations. And thus far, Jackson seems well versed in The Ginsburg Rule.