Ketanji Brown Jackson cites Justice Amy Coney Barrett as she dodges question on court-packing

Justice Barrett had said she wouldn't express a view on public policy during her confirmation hearing

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Judge Ketanji Brown Jackson dodged questions about court-packing from senators saying she'd follow the lead of Supreme Court Justice Amy Coney Barrett and not wade into policy matters during her confirmation hearings before the Senate.

Sen. Dick Durbin, D-Ill., prefaced a question to Jackson about court-packing by reading a quote from 2020 when Barrett declined to answer questions on controversial public policy matters.

"I will not express a view on a matter of public policy, especially one that is politically controversial because that is inconsistent with the judicial role," Barrett said in 2020, according to Durbin. 

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"I agree with Justice Barrett," Jackson then told Durbin when he asked her about court-packing during her Tuesday confirmation hearing, "in her response to that question when she was asked before this committee. … Judges should not be speaking into political issues and certainly not a nominee for a position on the Supreme Court."

Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Tuesday, March 22, 2022. (AP Photo/Andrew Harnik)

Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Tuesday, March 22, 2022. (AP Photo/Andrew Harnik) (AP Photo/Andrew Harnik)

"So I agree with Justice Barrett," Jackson concluded.

However, that quote that Durbin read was a response that Barrett gave to then Sen. Kamala Harris, D-Calif., when asked about climate change – not court packing. At the time, Barrett being pressed by Harris on whether she believed climate change is happening and "threatening the air that we breathe and the water that we drink."

The Senate Republican Communications Center tweeted in response: "FACT CHECK: Justice Barrett wasn’t asked to take a position on court-packing. Judge Jackson cited a nonexistent precedent supposedly set by Justice Barrett at her confirmation hearing but Justice Barrett was NOT ASKED to take a position on court-packing."

Associate Justice Amy Coney Barrett poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021. Erin Schaff/Pool via REUTERS

Associate Justice Amy Coney Barrett poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021. Erin Schaff/Pool via REUTERS (Erin Schaff/Pool via REUTERS)

In 2020, Sen. Mike Lee, R-Utah., asked Barrett about court packing where she said the Constitution does not mandate the size of the court and that's "a question left open to Congress." Barrett told Lee "I couldn't opine on it" when asked if changing the court size would have an impact on the three branches of government.

Later on Tuesday, Sen. Chuck Grassley, R-Iowa., pressed Jackson more on the issue, noting that the late Justice Ruth Bader Ginsburg and Justice Stephen Breyer have spoken up against expanding the court beyond nine justices.

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"Do you agree with Justice Breyer and Justice Ginsburg that court-packing is a bad idea?" Grassley pressed.

Jackson again declined to answer: "That it is a policy question for Congress. And I am particularly mindful of not speaking to policy issues because I am so committed to staying in my lane of the system."

Attorney General Merrick Garland departs after speaking at the Justice Department in Washington, on Tuesday, June 15, 2021. Garland never got Senate confirmation hearings as then-President Obama's Supreme Court nominee, but President Biden nominated him to be Attorney General in 2021. (Win McNamee/Pool via AP)

Attorney General Merrick Garland departs after speaking at the Justice Department in Washington, on Tuesday, June 15, 2021. Garland never got Senate confirmation hearings as then-President Obama's Supreme Court nominee, but President Biden nominated him to be Attorney General in 2021. (Win McNamee/Pool via AP)

Republicans have been keen to get Jackson on the record about court-packing, arguing that liberal groups that have backed her nomination are vocally in-favor of court-packing, including the liberal group, Demand Justice.

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The court expansion effort gained steamed on the left after former President Obama was denied a chance to put Merrick Garland on the court because then Senate Majority Leader Mitch McConnell, R-Ky., refused to hold confirmation hearings until after the 2016 election, which gave way to President Trump adding three conservatives to the court.

The court currently has a 6-3 divide between justices appointed by Republicans and Democrats. If Jackson is confirmed by the Senate, the ideological division of the court would remain unchanged.

Durbin's office defended his use of Barrett's climate change quote as her standard on the court packing issue. 

"Yes, that quote is from her response to climate change—but then-Judge Barrett’s response also described her approach to policy questions in general," a committee aide told Fox News Digital. "Then-Judge Barrett also explicitly said she couldn’t opine on court packing because it is a policy question left up to Congress."

The aide added: "Judge Jackson should not be held to a different standard."