WASHINGTON — California Sen. Dianne Feinstein has not ruled out the possibility of expanding the Supreme Court if Republicans fill the late Associate Justice Ruth Bader Ginsburg’s seat before the November election, she said in an interview Monday.
Some Democrats are urging that path if President Donald Trump loses to Joe Biden in November, but manages to fill Ginsburg’s seat. If Trump fills the seat, it would give conservatives a 6-3 majority on the Supreme Court, shaping years of decisions from the high court.
Feinstein, the top Democrat on the Senate Judiciary Committee, said the concept of adding seats to the nine-member Supreme Court was new to her.
“I hadn’t heard of it before, so let me take a look,” Feinstein said. “No one has ever told me that that’s a reality right now.”
“I think the hypocrisy, candidly, of what Republican leaders said is consequential,” she added, when asked what Democrats would do to fight the eventual vote. “And I think it should be met.”
Senate Majority Leader Mitch McConnell, R-Ky., has said the Senate will vote on Trump’s nominee to replace Ginsburg. His plan outraged Democrats because McConnell blocked former President Barack Obama’s nominee to fill a Supreme Court seat in 2016. McConnell held the seat open, enabling Trump to fill it with Associate Justice Neil Gorsuch.
Democrats have vowed to fight McConnell’s efforts to fill Ginsburg’s seat, and Minority Leader Chuck Schumer, D-N.Y., said “nothing is off the table” next year, if Democrat Biden defeats Trump and Democrats win the Senate majority.
Sen. Edward Markey, D-Mass., on Friday outlined that option on Twitter, where he wrote, “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
That process of adding justices to the Supreme Court hasn’t been attempted since President Franklin Roosevelt tried in 1937. The attempt was defeated by members of Congress in his own party.
If Democrats wanted to expand the Supreme Court, they would likely need Feinstein’s approval. If Democrats win the Senate majority, Feinstein would be first in line to lead the Judiciary Committee, which has jurisdiction over judicial nominations.
The number of justices on the court is set by statute, not the Constitution, so it could be changed by Congress and the president. Biden has not supported the idea in the past, however, saying in July 2019 that Democrats would “rue that day” they tried to pack the court.
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