Scalia’s Son Weighs In On Packing The Court: ‘They Can’t Have Justices Appoint Their Colleagues’

Christopher Scalia, son of the late Justice Antonin Scalia, said packing the Supreme Court is partially unconstitutional and might be a Democratic ploy to intimidate the Supreme Court.

“It’s pretty clear that one element of what some of the candidates are suggesting is just unconstitutional,” he told Fox News’ “Your World with Neil Cavuto” on Wednesday.

Scalia was referencing the idea of packing the court: that the Supreme Court should have 15 members, five of whom would “only be seated by unanimous agreement of the other 10,” president candidate Pete Buttigieg previously told Fox.

Buttigieg, also a mayor from Indiana, along with 2020 Democratic hopefuls Kamala Harris, Kirsten Gillibrand, Elizabeth Warren and Beto O’Rourke expressed some “openness” to expanding the Supreme Court, according to The Washington Post.

The problem with packing the court, Scalia says, is that “Article II, Section 2 of the Constitution makes very clear that the president has the power and authority to nominate and, with the advice and consent of the Senate, to appoint Supreme Court justices. So, I mean, I don’t know what … these candidates are talking about, but they certainly can’t have justices appoint their colleagues.”

Scalia added that justices appointing their colleagues would require a constitutional amendment.

“I just don’t think [it] has a snowball’s chance anywhere of being ratified,” he said.

Scalia suggested that Democrats might be copying a strategy used by former President Franklin Delano Roosevelt when he was trying to introduce the New Deal — that of intimidating the Supreme Court into doing what they want.

“When FDR did that — or when he tried to do that — it didn’t go over very well,” Scalia said.

“So he didn’t get more justices, but he did get a lot of what he wanted done, done. It’s possible that the Democrats, just by raising this threat of packing the Court, are trying to do something similar.”

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