In the lead up to Monday’s confirmation hearings to install Judge Amy Coney Barrett on the US Supreme Court, Democratic presidential candidate and former Vice President Joe Biden raised concerns that the efforts to put Barrett on the court are unconstitutional and exemplify court packing.
“The only court packing going on right now, is going on with Republicans packing the court now,” Biden told reporters on Saturday. “It is not constitutional what they are doing.”
Facts First: This is false. Legal experts say there is nothing strictly unconstitutional about Barrett’s confirmation process. When asked by CNN, the Biden campaign argued that the Senate’s push to confirm Barrett ahead of the election doesn’t violate a specific clause of the Constitution, but people’s constitutional right to have a say in who makes the nomination. According to his campaign, Biden’s comments refer to the principles and spirit of the Constitution, which they insist the effort to confirm Barrett before the election violates.
Article II, section 2 of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”
“President Trump has the constitutional power to ‘nominate’ Judge Barrett to be a Supreme Court Justice, and the Senate has the constitutional power to ‘consent’ to that,” Eugene Volokh, a professor at UCLA School of Law, told CNN. “That’s all the Constitution says on the subject, and no precedents have added any extra requirements to that.”
Josh Blackman, a South Texas College of Law professor who specializes in constitutional law, told CNN, “I have no idea what VP Biden meant.”
“The Constitution gives the Senate the power to hold a hearing,” Blackman added. “There is nothing unconstitutional about confirming Judge Barrett.”
Some Democrats have claimed Republicans’ successful efforts to block a hearing for President Barack Obama’s Supreme Court nominee Merrick Garland, on the grounds that the voice of the American people be taken into account through the results of the upcoming election, set a political precedent against holding confirmation hearings for any Supreme Court nominee in an election year.
But going against that precedent is not the same as being literally unconstitutional. Senate Majority Leader Mitch McConnell has argued that the circumstances surrounding the current situation are different enough to merit a hearing – Obama was in his last term and faced a Republican Senate, but Republicans now control both the Senate and the White House. Simply put, Republicans now have the power to do in 2020 what the Democrats did not have in 2016.
Asked about Biden’s comments, the campaign referred CNN to Laurence Tribe, Professor of Constitutional Law at Harvard Law School. Reached by CNN, Tribe said McConnell’s decision to hold a hearing for Barrett despite refusing to do so for Garland goes against the Constitution’s founding principles, but acknowledged the Republican-led nomination effort does not violate any specific article of the Constitution.
In defense of Biden’s claim, campaign spokesman Andrew Bates also added that “The structure and principles of our Constitution stand against this divisive and extreme power grab that Donald Trump and Mitch McConnell are carrying out in order to undo life-saving protections for Americans suffering from preexisting conditions. Ramming through this nomination after millions of Americans have already voted is contemptuous of the essential democratic structure that is the bedrock of the Constitution.”
“Most of what the Constitution forbids is not written down,” Tribe noted.
According to Tribe, Barrett’s nomination process taking place before the election avoids consent by the governed, misuses the Senate’s power of advice and consent, and violates the commitment to honor and decency he believes the framers intended those chosen to serve the American people must uphold.
“The sheer power to appoint a Supreme Court justice when you’ve got the votes is not in question,” Tribe said. “The question is what principles apply.”