Delaware senator says he's open to packing the Supreme Court

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A Democratic senator from Delaware said Sunday that he is open to adding more justices to the Supreme Court should Democrats capture the White House and Senate in the November election.

“Like Joe Biden, I’m not a fan of expanding the court but we have a few weeks here to see whether there are four Republicans who will step back from this precipice," Sen. Chris Coons told CNN's Jake Tapper during an interview on Sunday. 

Asked whether he was open to expanding the nation's highest court, Coons, a member of the Senate Judiciary Committee, said: "Yes."

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The Supreme Court has had nine justices for more than 150 years, but the Constitution does not require nine. Congress sets that number. 

Some Democrats argue that adding more justices to the nation's highest court is an appropriate response to Republicans blocking former President Barack Obama's nomination of Judge Merrick Garland in 2016 on the premise that seats should not be filled in election years, and then rushing to fill a vacancy in the wake of Ruth Bader Ginsburg's unexpected death. 

GOP senators contend this year is unlike 2016 because the same party controls both the White House and the Senate. If Republicans confirm Judge Amy Coney Barrett, whose hearing concluded last week, it would tilt the bench 6-3 in favor of conservatives.

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“[Republicans are] doing this to get someone on the court just in time, a week after the election, to take away critical health care protections from a majority of Americans, we need to focus on that,” Coons said. “And then if we happen to be in the fact pattern where we have a President Biden who will have to look at what the right steps are to rebalance our federal judiciary.”

No president has tried to change the size of the court since 1937, when Franklin D. Roosevelt introduced what became known as the "court packing plan" in order to get the Supreme Court to uphold New Deal legislation. It ultimately failed and the number of justices stayed at nine. 

Democratic presidential nominee Joe Biden and his running mate, Sen. Kamala Harris, have repeatedly dodged questions about whether they support adding more justices to the court should they win on Nov. 3.

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“I'm going to make clear my position in the next several days when they vote on this nominee, but I’ve got to keep the focus on that,” he said in an interview Friday with Fox 2 Detroit. 

Biden has previously dismissed the practice of court packing, arguing that it could ultimately backfire on Democrats. (In 1983, he called it a "bonehead" idea).

"I'm not prepared to go on and try to pack the court, because we'll live to rue that day," he told Iowa Starting Line last July, in the midst of the Democratic primary.

Popular support for expanding the court remains low: A survey taken in July, before Ginsburg died, found that 19% of Republicans and 30% of Democrats favored adding more justices.