Whitehouse says court-packing isn't just adding members: 'Court-packing by court-picking'

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Senate Judiciary Committee holds a hearing on the nomination of Ketanji Brown Jackson to be an Associate Justice of the Supreme Court of the United States

The court-packing issue arose yet again in Supreme Court nominee Ketanji Brown Jackson's confirmation hearing Wednesday, with one Democrat accusing Republicans of engaging in their own version of it.

Many Democrats advocate for court-packing, the practice of increasing the number of justices on the Supreme Court for political reasons. Republicans accuse them of putting the integrity of the court at risk with such an effort. 

But Sen. Sheldon Whitehouse, D-R.I., said Wednesday that Republicans are harming the Supreme Court's integrity by allegedly farming out their judicial picks to the Federalist Society. 

Sen. Sheldon Whitehouse, D-R.I., questions Supreme Court nominee Ketanji Brown Jackson during a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Wednesday, March 23, 2022. (AP Photo/Alex Brandon)

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"You can also pack a court by picking the justices," he said during comments at the hearing. "There is a long, unpleasant American tradition of agencies being taken over by virtue of picking the members. It's called agency capture or regulatory capture."

Whitehouse said one example was what happened with railroad regulation in the 1970s. 

"My concern is that the picking of the justices has been handed to special interests," Whitehouse added. "Court-packing by court-picking."

Whitehouse didn't ask Jackson to respond to his comments on court-packing. But Sen. Mike Lee, R-Utah, spoke immediately after Whitehouse and posed the question. 

Lee said court-packing is one thing Democrats could do that worries him most because, while he believes it's a terrible idea, it may be allowed by the Constitution.

Sen. Mike Lee, R-Utah, speaks during a news conference in the Capitol July 20, 2021. (Bill Clark/CQ-Roll Call, Inc)

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"There's nothing in the Constitution that says that Congress may not change the size of the Supreme Court," Lee said. "It's difficult to imagine why it would be a good idea to change it.

"If you increase the size of the court in one fell swoop, and you do that for partisan political purposes, it can turn the court into a political football of sorts," Lee added. "Given the fact that our Supreme Court justices serve for life, once you do that, it becomes something of a one-way ratchet, always expanding, never contracted."

Lee asked Jackson to explain her opinion on court-packing, but Jackson declined to address it.

"I have a lot of opinions," Jackson said. "I'm a human being, and I have an opinion on a lot of things. The reason why, in my view, it is not appropriate for me to comment is because of my fidelity to the judicial role. I understand that it's a political question and that is precisely why I think that I am uncomfortable speaking to it."

Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Wednesday, March 23, 2022. (AP Photo/Alex Brandon)

Whitehouse and most Democratic senators during the hearing looked down at their desks for the majority of the time Republicans were speaking. But Whitehouse appeared to look up and flash a smile in Jackson's direction when she made that comment. 

Sen. Richard Blumenthal, D-Conn., told Fox News Digital that Republicans are going overboard in their effort to get Jackson to weigh in on court-packing. 

"Judge Jackson and the future Justice Jackson has nothing to do with numbers of members on the Supreme Court," Blumenthal said. "She will be in no way involved in determining or influencing that decision. So, very justifiably, she said that she had nothing to do with it." 

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But Republicans appear unlikely to drop the court-packing issue as long as many progressives are pushing for it. Sen. Thom Tillis, R-N.C., and multiple others raised court-packing during Jackson's hearing as well, often in reference to the progressive group Demand Justice. 

"They want to nuke the filibuster. Fifty-one votes to make a decision that could ultimately be to pack the courts. This is their stated goal," Tillis said of the group. 

"The only thing that … the Supreme Court has its integrity … and the trust that [Americans] put into it," Tillis said. "Packing a court could cause the Supreme Court to lose the trust of the American people."