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Move to Make Court Packing Harder Blocked by Senate Democrats

Feb. 5, 2021, 6:44 PM

Senate Democrats beat back a Republican attempt to make it harder for them to add seats to the U.S. Supreme Court even if the legislative filibuster is eliminated.

Sen. Tom Cotton (R-Ark.) introduced an amendment to the budget resolution early Friday morning that would have required a 60-vote majority to add seats to the nine-member court.

Democrats were able to avoid a direct vote on the amendment, arguing it wasn’t germane to the budget resolution in violation of the Budget Act of 1974.

“Should we be changing the Senate rules in a budget resolution? I think not,” said Senate Judiciary Chairman Dick Durbin (D-Ill.), speaking for Democrats.

The amendment from Cotton, who is joining the Judiciary Committee, would have created a point of order requiring 60 votes that could be triggered if legislation to pack the court came to a vote. That would mean even if Democrats eliminated the filibuster on legislation, they would still be subject to a higher threshold vote for court packing.

This video examines what the Framers envisioned for the high court and the long history of presidents and Congress attempting to shape the Court to fit their political needs.

During the 2020 election campaign, some Democrats called for an expansion of the Supreme Court where conservatives command a 6-3 majority. Others, like President Joe Biden, avoided talking about the issue directly, but left open the possibility of reform.

“Obviously, all Republicans oppose such a radical idea,” Cotton said on the Senate floor. “Yet many Democratic politicians, to include Joe Biden, to include a few senators in this chamber tonight, contorted themselves to avoid taking a position on this issue, twisting themselves into pretzels on the campaign trail to simply say we ought not pack the Supreme Court because we don’t like their rulings.”

Durbin said it’s up to Congress to decide the number of Supreme Court justices.

“Congress has a long history of altering the makeup of the court. The number of justices changed six times before we arrived at the number nine. This amendment chooses to ignore the history,” Durbin said.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com