Democratic vice presidential nominee Sen. Kamala Harris (D-Calif.) late Sept. 28 refused to shoot down the idea of expanding the Supreme Court, following the lead of Democratic presidential nominee Joe Biden.
Top Democrats, including Sen. Ed Markey (D-Mass.) and House Judiciary Chairman Jerry Nadler (D-N.Y.), have said the party should add seats to the Supreme Court if it gains enough power in the upcoming Nov. 3 election.
Harris was asked about the idea during an appearance on MSNBC.
“I think Joe’s been very clear that he is going to pay attention to the fact—and I am with him on this 1,000 percent—pay attention to the fact that right now, Lawrence, people are voting. They’re voting,” she said.
“This is not some kind of debate about election year, should a sitting president be allowed or able to nominate someone to the United States Supreme Court for a lifetime appointment. This is not even an election year. This is like we’re actually in the election.”
Harris argued that voters “have a right, in an election, to elect their next president, who then will make the decision about who will be the nominee.”
Biden said last week that a question about whether he’d support packing the Supreme Court was legitimate, but he declined to answer.
“It’s a legitimate question, but let me tell you why I’m not going answer that question, because it will shift all the focus,” he said, alleging that that was what President Donald Trump wanted.
The Biden campaign didn’t respond to a request for comment.
Some Senate Democrats have also demurred when questioned about court-packing proposals.
Because the number of Supreme Court justices isn’t outlined in the Constitution, the number can change if Congress passes an act and a president signs it. The first version of the court had six justices. The number has stoof at nine since 1869.
A bipartisan group of lawmakers last week proposed a constitutional amendment that would cement the number of Supreme Court justices at nine. A group of Democrat lawmakers are preparing to introduce legislation that would implement term limits for justices, who currently serve until retirement or death.
Democrats have struggled in making a case against Trump moving to fill the vacancy left by the recent death of Supreme Court Justice Ruth Bader Ginsburg, particularly because many of them supported President Barack Obama filling a vacancy in 2016 that arose in an election year.
White House press secretary Kayleigh McEnany criticized the idea that Trump’s nominee shouldn’t be considered, telling reporters last week: “The president is elected to a four-year term. You cannot unilaterally reduce it to three years. The president is the president. Democrats cannot win their argument on the merits. They cannot win on precedent. So they must search and destroy.”
Democrats are upset that Senate Republicans in 2016 blocked Obama’s nominee, Merrick Garland, but are going to consider Trump’s nominee, Amy Coney Barrett, this time around. Both Harris and Biden supported holding a Senate vote on Garland.
Senate Republicans say the situations are different because the party split is resolved, since the GOP controls both the Senate and the presidency, and have cited historical precedent showing vacancies on the Supreme Court have been filled during election years.
Senate Judiciary Committee members will question Barrett next month before voting on whether to advance the nomination to the full Senate. The committee has eight Republicans and seven Democrats, since the GOP holds the Senate.
Provided the nominee is approved, the full Senate will vote on Barrett sometime this year, according to Senate Majority Leader Mitch McConnell (R-Ky.).