UPDATED: Kelly opposes adding new seats to Supreme Court

***This article has been updated to include Kelly’s opposition to the addition of new seats to the U.S. Supreme Court. He initially took no position on the issue.

Mark Kelly opposes adding new seats to the U.S. Supreme Court, a proposal that some Democrats are floating if Senate Republicans confirm a replacement for Justice Ruth Bader Ginsburg.

Kelly, the Democratic nominee against Republican U.S. Sen. Martha McSally, initially took no position on the idea of packing the Supreme Court, instead only criticizing both Democrats’ threats to add new justices and Republicans’ plans to hold confirmation hearings for President Donald Trump’s nominee to replace Ginsburg. 

“The Senate should be focused on passing urgently needed coronavirus relief for Arizonans — something they’ve pushed off for months — not rushing a vote on a lifetime nomination to the Supreme Court or issuing hypothetical threats about what will happen if the vacancy is filled,” Kelly said in a statement his campaign provided to Arizona Mirror.

“Hundreds of thousands of Arizonans are still without work, small businesses are struggling to stay afloat, and still Washington is engaging in divisive politics that take us further from addressing this public health and economic crisis.”

Campaign spokesman Jacob Peters later said Kelly opposes the idea, after the Mirror published a story stating that he had no position. Peters said Kelly’s initial statement was meant to convey his distaste for the “partisan gamesmanship” being employed by both Democrats and Republicans in the wake of Ginsburg’s death on Friday.

“He’s been highly critical of the threat to do it and … he opposes doing it,” Peters said.

Democratic rage over Senate Majority Leader Mitch McConnell’s refusal to hold confirmation hearings for Merrick Garland, President Barack Obama’s nominee to replace Antonin Scalia in 2016, has fueled discussion of packing the court, a move once viewed as radical that has gained momentum following Ginsburg’s death and McConnell’s announcement that he’ll move to confirm her replacement. 

The U.S. Constitution doesn’t specify the size of the Supreme Court, and if Democrat Joe Biden wins the presidency and his party wins control of the Senate in November, Democrats would have the power to add new seats. The number of justices has changed six times since the country’s founding, with the number vacillating between six and 10 justices. There have been 9 justices since 1869.

McSally is firmly opposed to the idea of packing the court.

“That’s insane. The Democrats want to upend our third branch of government,” McSally spokeswoman Caroline Anderegg told the Mirror.

Anderegg noted that Senate Minority Leader Chuck Schumer said on Saturday that “nothing is off the table for next year” if Republicans fill Ginsburg’s seat. 

The McSally campaign was quick to criticize Kelly for not taking a position, hammering him in a campaign email on Tuesday.

“Mark Kelly now owns this plan, and his continued obfuscation isn’t going to cut it. His silence is tacit consent for the Democrats’ plan to destroy the high court. Doesn’t get much more radical than that,” the email read.

Sen. Ed Markey, D-Mass., tweeted on Friday that, if McConnell moves forward with confirmation hearings for a Trump nominee, “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”

Democrats are furious that McConnell plans to forge ahead with confirmation hearings for Trump’s nominee to replace Ginsburg despite his refusal to do the same in 2016 for Merrick Garland, whom President Barack Obama picked to fill the vacancy left by Justice Antonin Scalia’s death in February of that year. 

McConnell said the vacancy occurred too close to the election, and that voters should decide who filled the seat, not Obama.

Kelly is taking the same position with Ginsburg’s seat.

“This is a decision that will impact Arizonans, especially with an upcoming case about health care and protections for pre-existing conditions. Arizonans will begin casting their ballots in a few weeks and I believe the people elected to the presidency and Senate in November should fill this vacancy,” Kelly said in a press statement on Saturday.

McSally wasted no time in calling for Ginsburg to be replaced swiftly, tweeting shortly after news of the justice’s death broke on Friday, “This U.S. Senate should vote on President Trump’s next nominee for the U.S. Supreme Court.”

Anderegg argued that the circumstances are different than in 2016 because the same party controls both the presidency and Senate, while four years ago control was split between a Democratic White House and a Republican Senate. 

Trump has narrowed his list of finalists to five women, and said he will announce his nominee on Friday or Saturday.

Even if Biden wins the presidency and Democrats take the Senate, an 11-member Supreme Court would be far from a foregone conclusion.

Though Biden has yet to comment on the idea of expanding the Supreme Court since Ginsburg’s death, he’s previously rejected the idea of packing the court, saying during an October 2019 debate that expanding the court would lead to a tit-for-tat retaliation by the Republicans the next time they have undivided control of the federal government and telling Iowa Starting Line last year that Democrats would “rue the day” if they expanded the court.

“We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all,” Biden said during the debate.

And if the Democrats have a majority in the Senate next year, it’s likely to be a narrow one, meaning they couldn’t afford to have any defections from moderate Democrats who represent more conservative states, such as Arizona’s Kyrsten Sinema or West Virginia’s Joe Manchin.

Sinema’s office did not respond to an inquiry from the Mirror about her position on adding new justices to the Supreme Court.

Arizona has turned into a critical battleground and the race between McSally and Kelly could decide which party controls the Senate in January. Polling has consistently shown Kelly, a former astronaut and husband of ex-Congresswoman Gabrielle Giffords, leading McSally, a former Air Force pilot and three-term congresswoman whom Gov. Doug Ducey appointed to fill the late Sen. John McCain’s seat. The winner will serve out the final two years of the term McCain was elected to in 2016, and will have to run again for a full term in 2022.

Because the race is a special election to fill the final two years of a term, if Kelly wins he’ll likely be sworn in as soon as Nov. 30, when Arizona’s election results are certified, the Arizona Republic reported last week. That could speed up the timeline to confirm Trump’s appointment, as Senate Republicans can’t afford to lose more than three votes. Republican Sens. Susan Collins, of Maine, and Lisa Murkowski, of Alaska, have already voiced their opposition confirming a nominee before the election.

Congress has changed the number of Supreme Court justices several times in the past. There have been as few as six justices, which was the size of the original court created in 1789, and as many as ten during the latter years of the Civil War.

In 1866, Congress reduced the number of seats to seven to thwart President Andrew Johnson, with whom Republicans battled constantly over the course of Reconstruction following the Civil War. Congress brought the court back up to nine justices in 1869 after Ulysses Grant was elected president.

President Franklin Roosevelt famously tried to pack the court in 1937 in response to rulings against New Deal legislation. His plan would have allowed presidents to add one new justice per year for every justice who wouldn’t retire after turning 70, with a cap of six new overall, which would have allowed a maximum of 15 justices.