Democrats have threatened to pack the Supreme Court if Donald Trump‘s nomination gets confirmed following the death of Ruth Bader Ginsburg.   

The president on Saturday urged the GOP-run Senate to consider ‘without delay’ his upcoming nomination to fill the seat vacated by Justice Ginsburg, who died Friday after a battle with cancer. 

The move comes just six weeks before the election and has sparked fierce debate, with many Democrats – as well as some Republicans – insisting the seat must not be filled until after the election.   

Several Democrats have vowed the party will expand the size of the court if they capture the Senate in November and Republicans have already pushed through a conservative successor to Ginsburg.  

Joe Kennedy III, who represents Massachusetts’ 4th Congressional District and is the grandson of Robert F. Kennedy, tweeted Sunday: ‘If he holds a vote in 2020, we pack the court in 2021. It’s that simple.’ 

Joe Kennedy III, who represents Massachusetts' 4th Congressional District and is the grandson of Robert F. Kennedy

Joe Kennedy III, who represents Massachusetts’ 4th Congressional District and is the grandson of Robert F. Kennedy

Kennedy III tweeted: 'If he holds a vote in 2020, we pack the court in 2021. It’s that simple'

Kennedy III tweeted: ‘If he holds a vote in 2020, we pack the court in 2021. It’s that simple’ 

House Judiciary Chairman Jerry Nadler wrote on Twitter: ‘If Sen. McConnell and @SenateGOP were to force through a nominee during the lame-duck session — before a new Senate and President can take office – then the incoming Senate should immediately move to expand the Supreme Court.’  

And Sen. Ed Markey tweeted Friday: ‘Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. 

‘If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.’

Senator Elizabeth Warren, Mayor Pete Buttigieg, vice presidential candidate Kamala Harris, as well as former Rep. Beto O’Rourke had already raised the possibility of adding as many as six seats to the nine-seat court, long before Ginberg’s death.  

While running as a Democrat presidential candidate against Biden, Buttigieg was one of the first to put the idea of a Supreme Court expansion back on the table last March.

He said he would restructure the Supreme Court, expanding it to 15 justices with five justices selected by the court itself through a unanimous vote in a move that would help ‘de-politicize’ it. 

O’Rourke also called it ‘an idea we should explore’ at a campaign stop in Iowa around the same time. 

‘What if there were five justices selected by Democrats, five justices selected by Republicans and those 10 then pick five more justices independent of those who picked the first 10,’ O’Rourke said. 

‘I think that’s an idea we should explore.’ 

Several Democrats have threatened to pack the Supreme Court next year if Trump plows ahead and nominates a justice to full RBG's position

Several Democrats have threatened to pack the Supreme Court next year if Trump plows ahead and nominates a justice to full RBG’s position 

What is court packing? 

Court packing is the move to appoint extra justices to the Supreme Court.

It is a move several Democrats have proposed if the party takes control of the Senate in order to increase the presence of liberal justices on the bench. 

Franklin D. Roosevelt made attempts to pack the court back in 1937 when the Republican president wanted to pass his New Deal laws and needed more conservative justices in the court to vote in favor of them. 

Roosevelt’s attempts failed and he was criticized by both Democrats and Republicans for the move.

However Democrats argue court packing will be necessary to rebalance the court if President Trump does not wait until after the presidential inauguration to appoint Justice Ginsburg’s replacement. 

The issue in contention is that Republicans barred President Obama from appointing a justice in the election year in 2016.

Many Democrats say this meant the seat – finally filled by a Trump nominee after he entered the White house – was ‘stolen’ by Republicans and that if Republicans now do the very same thing they banned Democrats from doing in 2016 by rushing through an appointment, Democrats will then be within their rights to rebalance the court.

He also suggested putting term limits on justices rather than the current tenure until retirement or death. 

‘There’s another idea of adding term limits on those justices so that there’s a more regular rotation through there,’ he said. 

‘We’re a country of 320 million people. There’s got to be the talent and the wisdom and the perspective and that court should be able to reflect the diversity that we are composed of.’ 

Harris, Biden’s running mate, has also said she wouldn’t rule out court packing in the past.

‘We are on the verge of a crisis of confidence in the Supreme Court,’ she said in March 2019. 

‘We have to take this challenge head on, and everything is on the table to do that.’ 

Warren said around the same time the focus should be on ‘depoliticizing’ the court and that adding more judges is ‘a conversation that’s worth having.’

Democrat presidential hopeful Joe Biden is yet to wade in on the fresh debate around packing the court since Ginsburg’s death.  

However, back in 2019, Biden spoke out against the practice.

‘No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,’ he told Iowa Starting Line in July 2019.

As long as the GOP holds a majority in the Senate, it’s unlikely a Democratic president could add more justices.    

Since 1869 nine justices have served on the nation’s highest court. 

However there is no set requirement on how many justices there should be in the Supreme Court, and Congress can change the number by passing an act signed by the president. 

While there are nine now, George Washington had six and Abraham Lincoln had 10, for example. 

Democrats have argued Republicans set a standard in 2016 by preventing an appointment during an election year and so the standard must now be maintained

Democrats have argued Republicans set a standard in 2016 by preventing an appointment during an election year and so the standard must now be maintained

That said, the concept of court packing is a controversial one. 

President Franklin D. Roosevelt attempted to pack the court with 15 in 1937 after watching the high court deal setbacks to his New Deal initiatives.  

He sought to expand the court to as many as 15 judges but many Republicans – as well as some Democrats – opposed his plan, slamming it as a move to enable him to appoint judges that would push through his laws. 

The bill was unpopular and ultimately stalled. 

Ginsburg herself also criticized the move prior to her death, telling NPR in an interview last year that it is a ‘bad idea’ and would ‘make the court appear partisan’. 

‘Nine seems to be a good number. It’s been that way for a long time,’ she said. 

‘I think it was a bad idea when President Franklin Roosevelt tried to pack the court.’

‘Well, if anything would make the court appear partisan, it would be that. 

‘One side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who will vote the way we want them to.” 

Justice Ruth Bader Ginsburg (pictured back in February) died Friday after a battle with cancer. Her dying wish was 'that I will not be replaced until a new president is installed'

Justice Ruth Bader Ginsburg (pictured back in February) died Friday after a battle with cancer. Her dying wish was ‘that I will not be replaced until a new president is installed’

House Speaker Nancy Pelosi has not spoken about the option of court packing but has floated other measures to stop Trump plowing ahead with the Supreme Court nomination and flooding the court with more right-leaning judges.

Pelosi on Sunday refused to rule out pushing forward a privileged impeachment resolution that would have the effect of eating up Senate floor time and potentially stall the nomination. 

‘We have our options. We have arrows in our quiver that I’m not about to discuss right now but the fact is we have a big challenge in our country,’ she told ABC’s ‘This Week‘ when asked about the prospect.

‘This president has threatened to not even accept the results of the election,’ Pelosi continued. 

‘Our main goal would be to protect the integrity of the election as we protect the people from the coronavirus.’ 

When pressed on the option of expanding the size of the court, Pelosi was less forthcoming. 

‘Well let’s just win the election. Let’s hope that the president will see the light,’ Pelosi said. 

The high court's chamber and Justice Ginsburg's seat was draped in black in tribute to the legal pioneer and champion of women's rights

The high court’s chamber and Justice Ginsburg’s seat was draped in black in tribute to the legal pioneer and champion of women’s rights 

Ginsburg's seat is draped in black. Several Democrats have vowed the party will expand the size of the court if they capture the Senate in November and Republicans have pushed through a conservative successor to Ginsburg

Ginsburg’s seat is draped in black. Several Democrats have vowed the party will expand the size of the court if they capture the Senate in November and Republicans have pushed through a conservative successor to Ginsburg

Packing the Supreme Court: For and against? 

For: 

  • Rep. Joe Kennedy III
  • House Judiciary Chairman Jerry Nadler 
  • Sen. Ed Markey 
  • Sen. Elizabeth Warren
  • Mayor Pete Buttigieg
  • VP candidate Kamala Harris
  • Former Rep. Beto O’Rourke

Against: 

  • President Trump  
  • Joe Biden
  • Sen. Bernie Sanders 
  • Former Rep. John Delaney 

While court packing may be a divisive move, it comes as Democrats are scrambling to prevent Trump nominating Ginsburg’s successor – something that would directly contradict the stance Republicans took back in 2016 when the shoe was on the other foot.   

Justice Antonin Scalia died in February 2016 and then-President Barack Obama planned to appoint Merrick Garland to fill the position on the court.

Republicans refused to hold hearings or vote on a replacement until after a new president took office with Senate Majority Leader Mitch McConnell saying: ‘the American people should have a voice in the selection of their next Supreme Court Justice. 

‘Therefore, this vacancy should not be filled until we have a new president.’  

The seat was not filled and two weeks after taking office Trump appointed his own choice Neil Gorsuch to the court instead. 

In 2016, the position was empty nine months before the election, while Ginsburg’s death comes just six weeks before the nation heads to the polls. 

Democrats argue Republicans set a standard in 2016 by preventing an appointment during an election year and so the standard must now be maintained. 

Nancy Pelosi and members of the public paid tribute to Ginsburg outside the Supreme Court. Pelosi on Sunday refused to rule out pushing forward a privileged impeachment resolution to stall the nomination of Ginsburg's successor

Nancy Pelosi and members of the public paid tribute to Ginsburg outside the Supreme Court. Pelosi on Sunday refused to rule out pushing forward a privileged impeachment resolution to stall the nomination of Ginsburg’s successor 

Franklin D. Roosevelt’s failed attempt to pack the court

The only other time court packing has been attempted was in 1937 when President Franklin D. Roosevelt tried and failed to make the major change to the Supreme Court. 

Roosevelt’s plan was seen as a move to pass his unpopular New Deal laws.

In 1935, the Supreme Court had struck down three of his New Deal laws. 

The House, Senate and White House were all Democrat-controlled but the court was led by 75-year-old Republican Chief Justice Charles E. Hughes and many of the older appointees voted down the laws, because included in one of them was a cut in Supreme Court pensions. 

When Roosevelt won a second term in 1936 and soon after he proposed a new bill called the Judicial Procedures Reform Bill of 1937 to expand the bench from nine to 15 justices, saying there was a need for an ‘infusion of new blood in the courts’.

The addition of six justices coincided with the number of justices over the age of 70 currently serving on the court.

Critics slammed the move, accusing Roosevelt of fixing the court with people likely to push through his laws.

Both Republicans and Democrats – even Roosevelt’s vice president John Nance Garner – were largely opposed to the plan and the bill to shake-up the court ultimately failed. 

However, by the end of his second term, three justices retired and two died, meaning Roosevelt was able to replace all five.

Throughout his White House tenure, the president had appointed nine justcies to the court.  

President Franklin D. Roosevelt tried and failed to pack the Supreme Court in 1937

President Franklin D. Roosevelt tried and failed to pack the Supreme Court in 1937

They say Republicans ‘stole’ the seat that should have been filled by Obama, and so Democrats would be within their rights to add more seats to reset the balance.  

However, McConnell issued a statement Friday after news of Ginsburg’s death broke that appeared to backtrack on his stance in 2016, saying Trump’s nominee would be voted for by the Senate. 

‘President Trump’s nominee will receive a vote on the floor of the Unites States senate,’ he said. 

The next day, protesters gathered outside McConnell’s home to demand he stop pushing forward with a new SCOTUS pick. 

Several Democrats have said it would be hypocritical if the president filled Ginsburg’s seat on the court before the election and have pointed out McConnell’s aboutface on such a move. 

‘The Senate should not consider a Supreme Court nomination until after the presidential inauguration,’ Senator Dianne Feinstein tweeted Sunday.  

‘Those aren’t my words, they’re the words of Majority Leader Mitch McConnell and Judiciary Committee Chairman Lindsey Graham.’ 

Feinstein shared McConnell’s pledge in 2016 to block the Democrats from appointing a new justice and also quoted comments made by Graham in 2018.

‘If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election,’ Graham said back in October 2018. 

Obama on Friday penned a Medium blog paying tribute to Ginsburg and insisting Trump must not appoint a new justice until after the election because the Republicans refused to allow him to do the same thing back in 2016.  

‘Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in,’ he wrote. 

‘A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment… As votes are already being cast in this election, Republican Senators are now called to apply that standard. 

Trump announced Saturday night that his Supreme Court nominee will be a woman, spotlighting two conservative women as his potential pick. 

During a campaign rally in North Carolina, Trump declared ‘I will be putting forth a nominee this week, it will be a woman’, later adding his pick would be a ‘very talented, very brilliant woman’ because ‘I like women more than I like men’.  

As he left the White House for the rally, the president identified two women as front runners: Amy Coney Barrett, 48, of the Chicago-based 7th Circuit and Barbara Lagoa, 52, of the Atlanta-based 11th Circuit as possible nominees.

Who is Amy Coney Barrett? 

On Saturday afternoon, Trump named Amy Coney Barrett, 48, of the Chicago-based 7th Circuit and Barbara Lagoa, 52, of the Atlanta-based 11th Circuit as possible nominees.

Emerging as the favorite is Barrett, 48, a mother of seven children, including two adopted from Haiti and one with special needs.

 Her involvement in a cult-like Catholic group where members are assigned a ‘handmaiden’ has caused concern in Barret’s nomination to other courts and is set to come under fierce review again if she is Trump’s pick.

The group was the one which helped inspire ‘The Handmaids Tale’, book’s author Margaret Atwood has said. 

Barrett emerges now as a front runner after she was already shortlisted for the nomination in 2018 which eventually went to Brett Kavanaugh.

Trump called the federal appellate court judge ‘very highly respected’ when questioned about her Saturday. 

Born in New Orleans in 1972, she was the first and only woman to occupy an Indiana seat on the Seventh Circuit Court of Appeals. 

Married to Jesse M. Barrett, a partner at SouthBank Legal in South Bend and former Assistant United States Attorney for the Northern District of Indiana, the couple have five biological and two adopted children. 

Their youngest biological child has Down Syndrome.

Friends say she is a devoted mother – and say with just an hour to go until she was voted into the 7th District Court of Appeals by the U.S. Senate in 2017, Barrett was outside trick-or-treating with her kids. 

Barrett’s strong Christian ideology makes her a favorite of the right but her involvement in a religious group sometimes branded as a ‘cult’ is set to be harshly criticized.    

In 2017, her affiliation to the small, tightly knit Christian group called People of Praise caused concern while she was a nominee for a seat on the United States Court of Appeals for the Seventh Circuit. 

The New York Times reported that the practices of the group would surprise even other Catholics with members of the group swearing a lifelong oath of loyalty, called a covenant, to one another. 

They are also assigned and held accountable to a personal adviser, known until recently as a ‘head’ for men and a ‘handmaid’ for women and believe in prophecy, speaking in tongues and divine healings. 

Members are also encouraged to confess personal sins, financial information and other sensitive disclosures to these advisors. 

Advisors are allowed to report these admissions to group leadership if necessary, according to an account of one former member. 

The organization itself says that the term ‘handmaid’ was a reference to Jesus’s mother Mary’s description of herself as a ‘handmaid of the Lord.’

They said they recently stopped using the term due to cultural shifts and now use the name ‘women leaders.’ 

The group deems that husbands are the heads of their wives and should take authority over the family while ‘the heads and handmaids give direction on important decisions, including whom to date or marry, where to live, whether to take a job or buy a home, and how to raise children,’ the Times reported. 

Unmarried members are placed living with married couples members often look to buy or rent homes near other members. 

Founded in 1971, People of Praise was part of the era’s ‘great emergence of lay ministries and lay movements in the Catholic Church,’ founder Bishop Peter Smith told the Catholic News Agency. 

Beginning with just 29 members, it now has an estimated 2,000. 

According to CNA, some former members of the People of Praise allege that leaders exerted undue influence over family decision-making, or pressured the children of members to commit to the group. 

At least 10 members of Barrett’s family, not including their children, also belong to the group. 

Barrett’s father, Mike Coney, serves on the People of Praise’s powerful 11-member board of governors, described as the group’s ‘highest authority.’ 

Her mother Linda served as a handmaiden.  

The group’s ultra-conservative religious tenets helped spur author Margaret Atwood to publish The Handmaid’s Tale, a story about a religious takeover of the U.S. government, according to a 1986 interview with the writer.

The book has since been made into a hit TV series. 

According to legal experts, loyalty oaths such at the one Barrett would have taken to People of Praise could raise legitimate questions about a judicial nominee’s independence and impartiality. 

‘These groups can become so absorbing that it’s difficult for a person to retain individual judgment,’ said Sarah Barringer Gordon, a professor of constitutional law and history at the University of Pennsylvania. 

‘I don’t think it’s discriminatory or hostile to religion to want to learn more’ about her relationship with the group.

‘We don’t try to control people,’ said Craig S. Lent. ‘And there’s never any guarantee that the leader is always right. You have to discern and act in the Lord. 

‘If and when members hold political offices, or judicial offices, or administrative offices, we would certainly not tell them how to discharge their responsibilities.’

During her professional career, Barrett spent two decades as a law professor at the University of Notre Dame, from which she holds her bachelor’s and law degrees.

She was named ‘Distinguished Professor of the Year’ three separate years, a title decided by students. 

A former clerk for late Supreme Court Justice Antonin Scalia, she was nominated by Trump to serve on the 7th U.S. Circuit Court of Appeals in 2017 and confirmed in a 55-43 vote by the Senate later that year.

At the time, three Democratic senators supported her nomination: Joe Donnelly (Ind.), who subsequently lost his 2018 reelection bid, Tim Kaine (Va.) and Joe Manchin (W.Va.), according to the Hill.

She was backed by every GOP senator at the time, but she did not disclose her relationship with People of Praise which led to later criticism of her appointment. 

Barret is well-regarded by the religious right because of this devout faith.

Yet these beliefs are certain to cause problems with her conformation and stand in opposition to the beliefs of Ginsburg, who she would be replacing.

Axios reported in 2019 that Trump told aides he was ‘saving’ Barrett to replace Ginsburg.

Her deep Catholic faith was cited by Democrats as a large disadvantage during her 2017 confirmation hearing for a seat on the U.S. Court of Appeals for the 7th Circuit.

‘If you’re asking whether I take my faith seriously and I’m a faithful Catholic, I am,’ Barrett responded during that hearing, ‘although I would stress that my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.’

Republicans now believe that she performed well in her defense during this hearing, leaving her potentially capable of doing the same if facing the Senate Judiciary Committee.

She is a former member of the Notre Dame’s ‘Faculty for Life’ and in 2015 signed a letter to the Catholic Church affirming the ‘teachings of the Church as truth.’

Among those teachings were the ‘value of human life from conception to natural death’ and marriage-family values ‘founded on the indissoluble commitment of a man and a woman’.

She has previously written that Supreme Court precedents are not sacrosanct. Liberals have taken these comments as a threat to the 1973 Roe v. Wade decision legalizing abortion nationwide.

Barrett wrote that she agrees ‘with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it’.

Among the other statements that have cause concern for liberal are her declaration that ObamaCare’s birth control mandate is ‘grave violation of religious freedom.’

LGBTQ organizations also voiced their concern about her when she was first named on the shortlist.  

She has also sided with Trump on immigration. 

In a case from June 2020, IndyStar reports that she was the sole voice on a three-judge panel that supported allowing federal enforcement of Trump’s public charge immigration law in Illinois, 

The law would have prevented immigrants from getting legal residency in the United States if they rely on public benefits like food stamps or housing vouchers.  

Who is Barbara Lagoa? 

Barbara Lagoa , 52, was named by Trump as one of his potential nominees to the Supreme Court. 

A Cuban American who parents fled to the U.S., Lagoa was born in Miami in 1967. She grew up in the largely Cuban American city of Hialeah.

According to the Tampa Bay Times, her parents fled Cuba over five decades ago when Fidel Castro’s Communist dictatorship took over. 

During the 2019 news conference in Miami announcing her appointment to the Supreme Court, she told the crowd that her father had to give up his ‘dream of becoming a lawyer’ because of Castro. 

If nominated to the nation’s high court by Trump and confirmed by the Senate, the mother of three daughters would be the second Latino justice to ever serve.

She served on the 11th U.S. Circuit Court of Appeals for less than a year after being appointed by Trump and confirmed by the Senate on an 80-15 vote

Prior to that she also spent less than a year in her previous position as the first Latina and Cuban American to serve on the Florida Supreme Court.

Lagoa is considered a protégé of Florida Gov. Ron DeSantis, a close Trump ally.

Her position in crucial swing state Florida could help Trump politically.

Last week, she voted in the majority in a ruling that barred hundreds of thousands of Florida felons who have served their time from voting unless they pay fees and fines owed to the state.

This decision could have a major impact on the presidential race as Florida is often won by a candidate by only razor-thin margins.

‘Florida’s felon re-enfranchisement scheme is constitutional,’ Lagoa wrote in a 20-page concurrence, according to USA Today.

‘It falls to the citizens of the state of Florida and their elected state legislators, not to federal judges, to make any additional changes to it.’

In 2000 Lagoa was one of a dozen mostly pro bono lawyers who represented the Miami family of Elián González, a Cuban citizen who became embroiled in a heated international custody and immigration controversy.

In 2016 while in the Florida Third District Court of Appeal, she wrote an opinion reversing the conviction of Adonis Losada, a former Univision comic actor sentenced to 153 years in prison for collecting child porn. 

She ruled that a Miami-Dade judge erred in not allowing Losada to defend himself at trial. 

That same month she became unpopular with free press advocates when she was one of three judges who allowed a Miami judge to close a courtroom to the public for a key hearing in a high-profile murder case. 

They ruled that publicity surrounding the machete murder of a student in Homestead might unfairly sway jurors at a future trial. 

Lagoa is a graduate of Florida International University and Columbia University Law.

She is is a member of the conservative Federalist Society, which stresses that judges should ‘say what the law is, not what it should be.’

She is married to lawyer Paul C. Huck Jr., and her father-in-law is United States District Judge Paul Huck. 



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