Sen. Marco Rubio (R-FL) is introducing legislation to keep the number of Supreme Court justices at nine, as some Democratic presidential candidates have expressed openness to expanding the Court.
“Court packing is quickly becoming a litmus test for 2020 Democratic candidates as this ugly, winner-take-all rhetoric gains prominence in progressive circles,” Rubio wrote in an opinion piece published by Fox News Wednesday. “To prevent the delegitimizing of the Supreme Court, I will introduce a constitutional amendment to keep the number of seats at nine.”
There is nothing “magical” about having nine justices, Rubio wrote. But, he added, “There is something inherently good and important about preventing the further destabilization of essential institutions.”
Earlier this week, Sens. Elizabeth Warren (D-MA), Kamala Harris (D-CA), and Kirsten Gillibrand (D-NY), all 2020 contenders, told Politico they would be open to the idea of expanding the court as part of their bids for the White House.
“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Warren told Politico, adding that one option could be bringing appellate judges onto Supreme Court cases.
“It’s a conversation that’s worth having,” she said.
Harris went so far as to say the country is “on the verge of a crisis of confidence in the Supreme Court.”
“We have to take this challenge head on, and everything is on the table to do that,” the California senator said.
Gillibrand, echoing her colleagues, told Politico she also believes Justice Neil Gorsuch possesses an illegitimate seat after Obama nominee Merrick Garland was denied a hearing ahead of the 2016 election. She also called for imposing “strict ethics rules” on Supreme Court justices.
Two other Democratic 2020 candidates, South Bend Mayor Pete Buttigieg and former Rep. Beto O’Rourke of Texas, have also signaled openness to expansion. Last week, O’Rourke floated the idea of having as many as 15 justices.
“What if there were five justices selected by Democrats, five justices selected by Republicans, and those 10 then picked five more justices independent of those who chose the first 10?” he said. “I think that’s an idea we should explore.”
O’Rourke also expressed some openness to term limits for Supreme Court Justices.
Buttigieg, for his part, said in an interview with the podcast Pod Save America that, given Garland’s lack of a hearing, the legitimacy of the Supreme Court is a conversation worth having. Buttigieg also floated a 15-member court.
“So, to me, this idea of adding justices is one way to do it. It may actually not be the most compelling way to do it,” he said.
“I mean, I’m interested in a policy where you would have five appointees of Republicans and five of Democrats on a 15-member court. And where you get the other five from is a consensus of the other 10 which has to be unanimous.”