Democratic members have struggled with changing rationales for voting against Barrett, who has impeccable credentials as an accomplished academic and respected jurist. One such implausible claim was made the day before the hearing by Sen. Chris Coons (D., Del.) on Fox News Sunday. He claimed the nomination “constitutes court packing.” Both Biden and his running mate Sen. Kamala Harris (D., Cal.) have referred to nominating conservatives as court packing. Biden and others have refused to tell voters whether they will move to pack the Supreme Court if the Democrats retake both the Senate and the White House (a proposal once denounced by Ruth Bader Ginsburg herself). Instead of answering, Coons and others insist that Barrett’s nomination is court packing — a position that would allow them to vote against her without the need to consider her actual qualifications.
The portrayal of the Barrett nomination as court packing is facially absurd. Court packing is the expansion of the Court to create a dominant ideological majority. Referring to such a proposal by Franklin Delano Roosevelt, then Sen. Joe Biden once denounced it as “a bonehead idea . . . a terrible, terrible mistake” in seeking to add seats to the Court just to create a majority. Filling a vacancy on the Supreme Court is not court packing under any remotely plausible definition. Otherwise, anytime you disagree with the choices of a president, it would be court packing despite leaving the court the same size.