GOP Sen. Richard Burr is opposing Supreme Court nominee Ketanji Brown Jackson over 'court packing,' which she has no control over

• Sen. Richard Burr said he would oppose Ketanji Brown Jackson's nomination to the Supreme Court.
• Burr cited Jackson's "unsatisfactory" answers on court packing.

In opposing Judge Ketanji Brown Jackson's nomination to the Supreme Court, Senate Republicans have labeled her an "activist" and misleadingly claimed she's been "soft" in child-sex-abuse cases.

But coming out against her nomination Thursday, Sen. Richard Burr, who is retiring, picked an issue over which Jackson has no control: increasing the number of Supreme Court justices, often referred to as "court packing."

Burr, a North Carolina Republican, said he could not support her nomination to serve as the first Black female Supreme Court justice because her responses to questions about expanding the Supreme Court were "unsatisfactory."

"My top concern going into our meeting was ascertaining Judge Jackson's position on radical proposals to pack the Supreme Court by expanding the number of justices. Court packing is a transparent power grab — one that would forever compromise the integrity, impartiality, and independence of the Supreme Court," Burr said in a statement.

"While she is undoubtedly highly qualified, knowledgeable, and experienced, based on our discussion, I cannot support Judge Jackson's nomination when it comes before the Senate," he added.

Some legal experts immediately said it was a somewhat odd premise for opposing Jackson's nomination. The question of expanding the Supreme Court is up to Congress, not the federal judiciary, to decide. That means even if Jackson is confirmed, she does not control whether more justices are added to the court.

In four years, President Donald Trump reshaped the Supreme Court, appointing three justices and cementing a 6-3 conservative tilt. The expanded conservative majority galvanized progressive advocates, including the courts-focused group Demand Justice, to call on Democrats to increase the number of Supreme Court justices. Some Democratic lawmakers have also pushed for expansion of the court, while Republicans are against the move.

In his statement, Burr defended his position, saying: "Justice Ginsburg and Justice Breyer both rejected court packing and the next justice who joins the court should do the same."

Senate Minority Leader Mitch McConnell has also similarly invoked Justice Ruth Bader Ginsburg's and Justice Stephen Breyer's comments on court packing in his criticism of Jackson.

Both Ginsburg and Breyer vocalized their opposition to ideas about expanding the court's size as the topic gained national attention while they were on the Supreme Court, not during their confirmation processes.

Jackson alluded to that as she faced questioning on the issue from Republican senators during her confirmation hearings last week and said other recent Supreme Court nominees had not commented on the matter.

"Respectfully, senator, other nominees to the Supreme Court have responded as I will, which is 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," Jackson said last week after Republican Sen. Chuck Grassley of Iowa asked her to weigh in on expanding the court's size.

For the most part, Jackson, an appointee of President Joe Biden on the US Court of Appeals for the District of Columbia Circuit, declined to state a position on changing the size of the Supreme Court. She said judges should not speak on "political issues."

"Again, my North Star is the consideration of the proper role of a judge in our constitutional scheme," she said.

Jackson added that she agreed with how Justice Amy Coney Barrett addressed the issue of court packing during a 2020 confirmation hearing.

During that hearing, Sen. Mike Lee, a Utah Republican, asked: "If we abandoned the long-standing historical practice and tradition of having nine justices, could that have an impact on the way the three branches of government interact with each other?"

"Possibly, but it's difficult for me to imagine what specific constitutional question you're asking. And, of course, if there were one, I couldn't opine on it," Barrett said.

Burr announced his opposition to Jackson's nomination the same day Sen. Lindsey Graham said he would also vote against confirming her. Graham, a South Carolina Republican who supported Jackson's confirmation to the DC Circuit last year, painted the nominee as a partisan, ideologically motivated judge in remarks on the Senate floor.

"I now know why Judge Jackson was the favorite of the radical left," Graham said.

Earlier in the week, Sen. Susan Collins emerged as the first Republican to support Jackson's confirmation to the Supreme Court. The Maine lawmaker had previously voted to confirm Jackson to the DC Circuit.