Sen. Markey says Dem court-packing proposal would require filibuster being repealed

Democratic Sen. Ed Markey on Thursday said the filibuster would have to be repealed in order to push forward the legislation he co-sponsored to expand the Supreme Court, saying Democrats will begin the effort to do so "today."

Markey, D-Mass., along with House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., and Judiciary Committee members Mondaire Jones, D-N.Y., and Hank Johnson, D-Ga., announced their legislation, which would expand the Supreme Court to 13 justices, on Thursday.

There are currently nine seats on the court – a number that has remained the same since 1869.

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The legislation, though, is highly unlikely to proceed, as Democrats can only lose two votes in the House and still be able to pass the bill. And in the Senate, they would need to get rid of the legislative filibuster to pass their court-packing bill.

"Ultimately, we have to repeal the filibuster and then we can move this legislation, as they can move the legislation in the House of Representatives right now with a majority of the votes," Markey said Thursday in unveiling the bill. "So we begin the case today."

Markey said he "would want Republicans to vote with us, but if they are not willing to participate in that effort, then we can still do this on a basis of 51 votes."

"And that will ultimately require a repeal of the filibuster and then passage of this legislation with 51 votes," he explained. "So we begin the effort today."

The filibuster is a threshold of 60 votes in the Senate that's necessary before a piece of legislation is given an up or down vote.

If Democrats wanted to establish a new filibuster precedent, they could do so with 51 votes – all 50 senators in the Democratic caucus plus Vice President Harris breaking the tie.

Meanwhile, Markey said all "issues go through three phases," referring to the filibuster.

"Political education, political activation, political implementation," he said. "So we begin the education of the American people today and it will become more clear as each month goes by, as each decision emanates from the Supreme Court, that a fundamental historical imbalance has been created and it needs to be rectified."

Markey added: "But the solution ultimately will entail a repeal of the filibuster."

"We must expand the court," he continuted. "And we must abolish the filibuster to do it."

Markey has been pushing an end to the filibuster – as well as expanding the Supreme Court – since last year, after former President Trump nominated now-Justice Amy Coney Barrett to the high court after the death of late Justice Ruth Bader Ginsburg. Trump had three nominees confirmed to the Supreme Court during his presidency.

However, despite Markey’s confidence that his co-sponsored legislation could make it through the House, Speaker Nancy Pelosi, D-Calif., on Thursday said she has no plans to bring that bill to the floor for consideration.

"No," she said, noting that she supports President Biden’s commission to study "such a proposal."

"I think it is an idea that should be considered," Pelosi said. "It’s a big step. It’s not out of the question. It has been done before. In the history of our country, a long time ago, and the growth of our country, the size of our country, the growth of our challenges in terms of the economy, et cetera, might necessitate such a thing."

She added: "I have no plans to bring it to the floor."

If passed, President Biden would have the ability to add four justices, overcoming the high court's present 6-3 conservative majority.

Biden, last week, issued an executive order to form a commission to study reforms to the Supreme Court.

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The 36-member commission will be bipartisan and will hold public meetings to evaluate court reforms. The new panel will have 180 days from the first meeting to complete its report on the pros and cons of court reforms.

While court packing – or expanding the number of justices beyond nine – has been the most high-profile court reform debated, Biden's executive order seeks to look at other judicial changes, including the lifetime appointment of justices. 

According to the White House, the commission will look into "the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules and practices."

Biden has been cool to the idea of court packing in the past, calling it a "bonehead idea" in 1983, and he said during the presidential campaign that he's "not a fan of court packing."

Biden pledged to form the commission during the campaign.

Meanwhile, Republicans have called the move to expand the court an "assault" on judicial independence, but predicted the move would prove unpopular and ultimately help Republicans in the 2022 midterm elections. 

Fox News' Tyler Olson and Marisa Schultz contributed to this report.