Former US vice president Joe Biden has said he is “not a fan” of expanding the number of justices on the US Supreme Court, but would not rule it out if he wins the presidential election on Nov. 3.
Under the US Constitution, justices on the nation’s highest court are nominated to lifetime posts by the president and confirmed by the Senate.
The US Congress sets their number, and after some seesawing in the country’s early days, it has remained steady at nine since 1869.
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Barring a surprise, the Republican-controlled Senate would in the coming days approve US President Donald Trump’s nomination of Judge Amy Coney Barrett to replace Ruth Bader Ginsburg, the liberal icon who died on Sept. 18.
That would bring the number of conservative justices on the bench to six, including three nominated by Trump, potentially cementing a conservative majority for decades to come.
Senate Democrats have decried “rushing” through a nomination just weeks away from a presidential election, but there is little they can do about it.
However, the possibility of a Democratic victory on Nov. 3 has given rise to the question of expanding the court, so-called “court-packing.”
“We should leave all options on the table, including the number of justices that are on the Supreme Court,” US Representative Alexandria Ocasio-Cortez said.
The suggestion of adding justices to the venerable body has raised Republican hackles.
US Senator Mike Lee, a Republican, said it would “delegitimize the court.”
“Before long it looks like the Senate in Star Wars, where you’ve got hundreds of people on there,” Lee said.
Most Americans appear to oppose expanding the court.
In a YouGov poll, 46 percent said they opposed increasing the number of Supreme Court justices, while just 21 percent said they supported it.
“Americans have this vision of the Supreme Court as apolitical,” said Kevin McMahon, a professor of political science at Trinity College. “That’s not true, but Americans have that vision.”
“And when you have the political body getting involved in the court, it raises concerns that the judges will just be politicians in robes,” he added.
Former US president Franklin Roosevelt tried, but failed to expand the court in 1937.
Frustrated that the court had struck down elements of his “New Deal” legislation, Roosevelt sought to “pack” it with favorable justices.
However, the move was seen as a power grab and became unnecessary after two justices switched their positions on the New Deal reforms.
The issue resurfaced in March 2016 when the Republican-
controlled Senate refused to consider the nomination of a justice named by then-US president Barack Obama, a Democrat, arguing that it was too close to the November presidential election.
“There’s a lot of people in the Democratic Party who feel that the Republicans essentially stole a seat from the Democrats,” McMahon said.
Biden has been asked repeatedly on the campaign trail about “court-packing,” but has tended to dance around the subject.
“I’m not a fan of court-packing, but I don’t want to get off on that whole issue,” he told CNN affiliate WKRC. “I want to keep focused.
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