SALT LAKE CITY — Sen. Mike Lee condemned Democrats entertaining the idea of increasing the size of the U.S. Supreme Court should Judge Amy Coney Barrett be confirmed and Joe Biden elected president.
The Utah Republican said in Barrett’s confirmation hearing Tuesday that there’s a reason Biden won’t say whether he would pack the court.
“There’s only one reason why you refuse to answer that question. It’s your wanting to be able to do it but you don’t want to take the heat for the fact that you’re thinking about doing it right now,” he said.
But the Democratic presidential nominee told WKRC in Cincinnati on Monday that he’s not big on court packing.
“I’m not a fan of court packing, but I don’t want to get off on that whole issue,” Biden said. “I want to keep focused. The president would love nothing better than to fight about whether or not I would, in fact, pack the court or not pack the court.”
His comments Monday went further than his previous answers to the question. Biden told reporters last week he would not address the issue until after the Nov. 3 election.
Court packing was among several issues, including health care and abortion, Lee held forth during the Senate Judiciary Committee hearing Tuesday in which he asked Barrett few questions and did most of the talking during his allotted 30 minutes.
The committee will continue questioning President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg on Wednesday and Thursday.
Lee said that he has “immense” confidence and trust in Barrett and looks forward to voting for her.
Barrett agreed with Lee that the Constitution does not say anything about the size of the Supreme Court and that power rests with Congress. Congress set the number at nine in 1869 where it has remained.
Lee said if the Democrats were to increase the number of justices to 11, Republicans would expand on that number when they had the chance.
“Before long it would look like the Senate in “Star Wars” where you’ve got hundreds of people on there,” he said.
Increasing the number of justices delegitimizes the court and does “immense” political and constitutional harm to the U.S. system of government, he said. Having nine justices, he said, ensures the separation of powers among the branches of government.
When Lee asked Barrett if changing the size of the court would impact how the branches of government interact, she replied “possibly.”
“You can’t pack the Supreme Court without inevitably threatening things like religious freedom, things like free speech — things that are themselves often unpopular but are protected by the Constitution precisely because they are unpopular,” Lee wrote in a tweet.
Lee tore into Democrats for “fearmongering” and fundraising over threats that people would lose their health care if Barrett is confirmed.
“It is simply not the case that the fate of health care in America turns on whether or not someone is confirmed to the Supreme Court of the United States nor is it a fact to suggest that the availability of an abortion or lack thereof is contingent upon anyone’s confirmation to the Supreme Court of the United States,” he said.
Sen. Dianne Feinstein, D-Calif., the committee’s ranking Democrat, tried to pin down Barrett’s views on abortion, health care, gun rights and same-sex marriage. But Barrett deflected the questions and would not answer directly.
“It’s distressing not to get a straight answer,” the senator said.
Feinstein reminded Barrett that Justice Antonin Scalia wrote that Roe v. Wade was wrongly decided and should be overturned. Though Barrett said she considers Scalia a mentor and shares his judicial philosophy, she could not commit to how she would rule in any case because she has no agenda.
“Judges cannot just wake up one day and say, ‘I have an agenda — I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world,” Barrett said.
Committee Chairman Sen. Lindsey Graham, R-S.C., asked Barrett if it would be accurate to call her a “female Scalia.”
“I want to be careful to say if I am confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett, and that is because not all originalists agree,” she said.
Barrett said no one should assume that she would decide a case the same way as Scalia, whom she worked for as a law clerk.
Sen. Chris Coons, D-Del., pushed Barrett on why she criticized Chief Justice John Roberts’ opinion that saved the Affordable Care Act.
Barrett called it an academic critique, and reiterated as she did throughout the hearing that she had not made any commitments or deals on how she would decide any particular case.
“I am not here on a mission to destroy the Affordable Care Act. I’m just here to apply the law and adhere to the rule of law,” she said.
Coons said he’s troubled by what Barrett has written about the health care law and that he believes she views it as unconstitutional.
“To reach out and to strike this critical statute down now would be the worst example of judicial activism, which my colleagues say they don’t want and which I hope won’t happen and I am gravely concerned,” he said.
If the president and the Republican majority is able to swing the court “out of balance” by replacing Ginsburg with a conservative justice, the health of a majority of Americans may be in peril, Coons said.
Sen. Amy Klobuchar, D-Minn., also pressed Barrett on Obamacare, asking if she would take Trump at his word when he said his nominee would “do the right thing” and overturn the health care law.
“I can’t really speak to what the president has said on Twitter,” Barrett said.
Among the questions Lee asked Barrett was what she sees as the difference between will and judgment.
Barrett said will is the imposition of policy through lawmaking, while judgment is evaluating a law’s consistency with the Constitution or interpreting what it means.
“A judge who approaches a case as an exercise of will has betrayed her judicial duty,” she said.
Barrett said when she writes an opinion, she tries to read it from the perspective of the losing party as a check on herself to make sure she is not biased.