Cotton tries to squeeze Democrats on expanding the Supreme Court

Sen. Tom Cotton (R-Ark.), a potential 2024 White House contender, forced a vote early Friday morning as he sought to get Democrats to go on the record over expanding the Supreme Court.

Cotton brought up his amendment roughly 11 hours into the Senate’s vote-a-rama to create a point of order against any future legislation that would expand the Supreme Court.

Had Cotton been successful, it could have given Republicans a foothold in the Senate rules to challenge court expansion legislation going forward; it would have inserted into the Senate rules that it was out of order to consider such legislation, thereby requiring three-fifths of the Senate to vote to overturn that if a senator wanted to bring up such a bill.

Cotton pointed to calls from some progressives to expand the Supreme Court when introducing his amendment.

“Many Democratic politicians, to include Joe Biden, to include a few senators in this chamber tonight, consorted themselves, 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,” Cotton said.

Democrats, however, were able to sidestep taking a vote directly on Cotton’s proposal.

“Come to think of it, should we be changing the Senate rules in the budget resolution?” asked Sen. Dick Durbin (D-Ill.), chairman of the Judiciary Committee. 

Instead, Durbin argued that the amendment violated a law governing what can be brought up during debates on budgets. Cotton needed 60 votes to waive the law and fell short.

Cotton called the strategy 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, simply 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,” Cotton said. 

Calls by some progressives to expand the Supreme Court have emerged as a lightning-rod issue that fires up Republicans and conservative voters, who have long viewed the judiciary as a key concern.

Senate Democrats have largely sidestepped whether they would support expanding the Supreme Court. 

President Biden was asked several times during the 2020 presidential campaign if he supported court expansion but declined to give a definitive answer. Instead, he’s created a commission to study potential court reforms.

The issue combines two controversial ideas: going nuclear to nix the legislative filibuster and then expanding the high court.

Supporters argue it is a necessary step after then-Majority Leader Mitch McConnell (R-Ky.) refused to give a hearing or vote to Merrick Garland when he was nominated to the Supreme Court in 2016.

Republicans then moved quickly to install a historically high number of federal judges, including three Supreme Court justices. Though Republicans blocked Garland in 2016 citing the presidential election, they set a new record in 2020 for how close to a presidential election a Supreme Court nominee has been confirmed. 

“The Constitution does not stipulate the number of Supreme Court justices. That’s up to Congress,” Durbin said. “Congress has a long history of altering the makeup of the court.

“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,” Durbin added.