MADISON – U.S. Sen. Tammy Baldwin and Democratic members of Wisconsin’s congressional delegation aren’t saying whether they believe expanding the U.S. Supreme Court is an idea Joe Biden and Congress should explore if he becomes president.
Baldwin would vote on such a plan as a member of the U.S. Senate but did not answer whether she supported the idea that Biden has avoided answering questions about in recent weeks as Republicans in the Senate move forward with confirming a new justice to the high court before the November election.
Two Democratic House members representing Wisconsin responded to questions from the Milwaukee Journal Sentinel but did not directly answer whether they supported expanding the court or whether Biden should address the question.
“I strongly believe that Republicans need to follow the precedent that they applied to Merrick Garland — that no justices be confirmed in an election year,” U.S. Rep. Gwen Moore, the Democrat from Milwaukee, said in a statement referring to a 2016 decision by Republicans who control the U.S. Senate to not confirm a Supreme Court nominee put forward by then-President Barack Obama.
Rep. Mark Pocan said elected officials and reporters should focus on the confirmation process of Barrett instead of a situation that isn’t currently occurring.
“Republicans are on the verge of confirming an extremist to the Supreme Court without proper review, threatening the future of our healthcare, reproductive rights, elections and LGBTQ equality,” Pocan, the Democrat from Black Earth, said in a statement.
“We must focus on the fight in front of us right now as Republicans fast-track a partisan Justice in the middle of an election — not hypotheticals about what may happen in 2021,” he said.
President Donald Trump nominated Amy Coney Barrett, a judge on the U.S. 7th Circuit Court of Appeals, to replace Justice Ruth Bader Ginsburg, who died in September. Unlike in 2016, Republicans in the Senate plan to confirm Barrett before the November election instead of waiting to let the winner nominate a new justice.
Democrats fear Barrett could be a deciding vote next month on the Supreme Court in a case that could end the Affordable Care Act and mark a long-lasting shift in how the court decides cases, particularly challenges to abortion access.
The U.S. Supreme Court was created in 1789 with six justices. Congress has acted to make the court larger or smaller more than once in the last 150 years often to create a partisan advantage, according to the National Constitution Center. The court has been as small as five justices in 1801 and briefly was as large as 10 in 1863. The court has had nine seats since 1869.
Biden has repeatedly sidestepped questions recently about whether he would push to expand the number of justices if he is elected to overhaul the makeup of the court as Republicans push to confirm Barrett.
But on Monday, Biden came close and told a Cincinnati television station he was “not a fan of court-packing.” Like his past responses to similar questions, however, Biden said he did not want to focus on the issue.
U.S. Sen. Ron Johnson, a Republican from Oshkosh who also would vote to confirm new justices, said Monday before Biden’s Ohio interview that the former vice president’s avoidance of directly addressing the question was displaying a “level of arrogance and disrespect” that is “jaw-dropping.”
Republican Reps. Mike Gallagher, Glenn Grothman, Bryan Steil and Tom Tiffany said they opposed the idea.
“This is a crazy idea and one that would effectively destroy our constitutional republic,” Gallagher of Green Bay said in a statement.
Gallagher said Biden should make clear where he stands on the issue.
“It’s clear court-packing is no longer a fringe idea on the Left, and the American people absolutely have a right to know whether or not a Biden Administration would upend 150 years of precedent and further politicize one of our country’s most trusted institutions,” Gallagher said.
Tiffany of Hazelhurst and Steil of Janesville said the idea was “dangerous” and that voters should know where candidates at the presidential and congressional level stand.
Grothman of Glenbeulah said one of the only two scandals he remembers learning about in history books as a student was President Franklin D. Roosevelt’s 1937 plan to expand the court.
“At the time, it was almost uniformly felt that Roosevelt should not be able to add seats to the Supreme Court. It is hard to believe that Joe Biden does not have an opinion on packing the Supreme Court and owes it to the American people to answer this question,” he said.
Retiring GOP Rep. Jim Sensenbrenner of Menomonee Falls said it’s “unacceptable for Joe Biden and Kamala Harris to dodge clarification of their views on court packing, or any other issue, weeks before an election.”
Harris did not answer the question during a debate with Vice President Mike Pence last week.
“The issue of court-packing is a question of basic American checks and balances,” Sensenbrenner said.
Baldwin and Democratic U.S. Reps. Ron Kind did not respond to questions as of Tuesday.
Laura Schulte of the Milwaukee Journal Sentinel contributed to this report.