Early Friday morning, Arkansas Republican Senator Tom Cotton attempted to force the Senate Democrats to go on the record on expanding the number of justices on the Supreme Court.
Cotton submitted an amendment, No. 66, to implement a point of order that would state in the Senate rules that it would be out of order to consider legislation that would expand the court. In order to overturn that position, a supermajority of the Senate consisting of 3/5 of the Senate would be needed (60 votes).
Cotton stated, “Last year, in certain fringe quarters of the Democratic party, it seemed popular to call for packing the Supreme Court, for extending the number of justices on the Court because you don’t like their political rulings. Now, obviously, all Republicans oppose such a radical idea, yet many Democratic politicians, to include Joe Biden, to include a few senators in this chamber tonight, contorted themselves to avoid taking a position on this issue twisting themselves into pretzels on the campaign trail to simply say we ought not pack the Supreme Court because we don’t like their rulings.”
“So I offer a simple amendment; an amendment that is backed by famous liberals like Ruth Bader Ginsburg, that we should not pack the Supreme Court,” Cotton continued. “Now, I understand that the Democrats are going to raise a point of order, saying this is not germane; yet more contortions to avoid taking a simple stance on this issue. So I would invite my Democratic colleagues who have said they don’t want to pack the Court, simple waive this point of order, and let’s have an up or down vote on one of the most fundamental tenets of the rule of law: that you do not pack the courts because you don’t like the way they rule.”
Grinning, Cotton concluded, “I yield back my time, and I encourage your support.”
Illinois Democrat Senator Dick Durbin said, “The Constitution does not stipulate the number of Supreme Court justices. That’s up to Congress. Congress has a long history of altering the makeup of the court. The number of justices changed six times before we arrived at the number nine; this amendment chooses to ignore the history.”
Durbin added, “But for the record, there is exactly one living senator who has effectively changed the size of the Supreme Court: That’s Sen. McConnell, who shrank the court to eight seats for nearly a year in the last year of the Obama presidency by refusing to fill the Scalia vacancy.”
“Now President Biden established a bipartisan commission to study Supreme Court reform. Let them do their work,” Durbin snapped. “And come to think of it, should we be changing the Senate rules in the budget resolution? I think not. In fact, as a result, I raise a point of order: that the pending amendment is not germane to the underlying resolution, therefore it violates 305b2 of the Congressional Budget Act of 1974.”
Cotton fired back, “In accordance with Section 904 of the Congressional Budget Act of 1974, in the waiver provisions of all applicable budget resolutions, I move to waive all applicable sections of that act and applicable budget resolutions for purposes of amendment 66, and I ask for Yeas and Nays.”
In the end, 50 senators voted yea, 50 voted nay, along partisan lines. The amendment failed.