4 memorable moments from day 2 of Amy Coney Barrett's confirmation hearings

Sen. Lee questions Barrett on court packing

One of the most contentious topics of the 2020 presidential election came up during Barrett’s confirmation hearings, as Sen. Mike Lee, R-Utah, brought up the issue of court packing during his exchange with the nominee.

“Does the Constitution say anything about the size of the Supreme Court?” he asked. “The Constitution does not,” she replied.

“That is a question left open to Congress. It’s my understanding that it’s been nine for about 150 years but that’s as a matter of statute, not constitutional requirement,” she added.

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Lee asked Barrett if she thought the statute establishing nine justices on the Supreme Court could have “some bearing on constitutional issues.” After she requested clarification, he asked her to opine on what would happen “if we abandoned the longstanding historical practice and tradition of having nine justices on the Supreme Court,” specifically whether that would “have an impact on the way the three branches of government interact with each other.”

“Possibly,” she replied. “It’s difficult for me to imagine what specific constitutional question you’re asking and, of course, if there were one, I couldn’t opine on it.”

Lee spent the remainder of his time advocating against court packing, which he said poses “a great danger to do immense political and constitutional harm to our system of government.” According to Lee, packing the court would “set up a one-way ratchet” where “once you create a position and confirm someone to that position absent death, retirement or impeachment or removal, that position remains in place.”

Lee explained what he thought would happen if “for example, a future Congress and White House were to decide to get together and to pack the court and increase the number, say, to 11 and let’s say it’s Democrats who do that.” He suggested that the Democrats’ hypothetical court packing would inevitably lead to Republicans increasing the number of justices on the Supreme Court the next time they gained control of Congress and the White House.

“You’d end up increasing it incrementally. Before long, it looks like the Senate in Star Wars, where you’ve got hundreds of people on there,” he warned. Lee proclaimed that making such a move on either side of the aisle would “delegitimize the court.”

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