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In opposing Judge Ketanji Brown Jackson's nomination to the Supreme Court, Senate Republicans have labeled her an "activist" and levied the misleading attack that she's been "soft" on child-sex abusers.
But coming out against her nomination Thursday, retiring Sen. Richard Burr picked an issue over which Jackson has no control: increasing the number of Supreme Court justices, often referred to as "court packing."
Burr, a North Carolina Republican, said he could not support her nomination to serve as the first Black female justice because her responses to questions about expanding the Supreme Court were "unsatisfactory."
"My top concern going into our meeting was ascertaining Judge Jackson's position on radical proposals to pack the Supreme Court by expanding the number of justices. Court packing is a transparent power grab – one that would forever compromise the integrity, impartiality, and independence of the Supreme Court," Burr said in a statement.
"While she is undoubtedly highly qualified, knowledgeable, and experienced, based on our discussion, I cannot support Judge Jackson's nomination when it comes before the Senate," he added.
As some legal experts immediately noted, it was a somewhat odd premise for opposing Jackson's nomination. The question of expanding the Supreme Court is up to Congress, not the federal judiciary, to decide. That means that even if Jackson is confirmed, she does not control whether or not more justices are added to the Supreme Court.
In four years, former President Donald Trump reshaped the Supreme Court, appointing three justices who cemented a 6-3 conservative tilt. The expanded-conservative majority galvanized progressive advocates, including the courts-focused group Demand Justice, to call on Democrats to increase the number of Supreme Court justices. Some Democratic lawmakers have also pushed for expansion of the Supreme Court, whereas Republicans are against the move.
Burr in his statement defended his position by saying: "Justice Ginsburg and Justice Breyer both rejected court packing and the next justice who joins the court should do the same." Senate Minority Leader Mitch McConnell has also similarly invoked the late Justice Ruth Bader Ginsburg's and Justice Stephen Breyer's comments on court packing in his criticism of Jackson.
Yet both Ginsburg and Breyer vocalized their opposition to ideas about expanding the court's size as the topic gained national attention while they were on the Supreme Court, not during their respective confirmation processes.
Jackson alluded to that fact as she faced questioning on the issue from Republican senators during her confirmation hearings last week, and highlighted that other recent Supreme Court nominees have not commented on the matter.
"Respectfully, senator, other nominees to the Supreme Court have responded as I will, which is that it is a policy question for Congress and I am particularly mindful of not speaking to policy issues because I am so committed to staying in my lane of the system," Jackson said last Tuesday after Sen. Chuck Grassley asked her to weigh in on expanding the court's size.
For the most part, Jackson, a Biden appointee on the powerful US Court of Appeals for the DC Circuit, declined to state a position on changing the size of the Supreme Court. She said judges should not speak on "political issues."
"Again, my North Star is the consideration of the proper role of a judge in our constitutional scheme," she testified.
Jackson added that she agreed with how Justice Amy Coney Barrett Barrett addressed the issue of court-packing during her 2020 confirmation hearing.
During that hearing, Sen. Mike Lee, a Utah Republican, asked: "If we abandoned the long-standing historical practice and tradition of having nine justices, could that have an impact on the way the three branches of government interact with each other?"
"Possibly, but 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," Barrett said.
Burr announced his opposition to Jackson's nomination the same day Sen. Lindsey Graham said he too would vote against confirming her. Graham, a South Carolina Republican who supported Jackson's confirmation to the DC Circuit last year, painted the nominee as a partisan, ideologically motivated judge in remarks on the Senate floor.
"I now know why Judge Jackson was the favorite of the radical left," Graham said.
Earlier in the week, Sen. Susan Collins emerged as the first Republican to support Jackson's confirmation to the Supreme Court. The Maine lawmaker had previously voted to confirm Jackson to the DC Circuit.
