“The only court packing going on right now, is going on with Republicans packing the court now,” Biden told reporters on Saturday. “It is not constitutional what they are doing.”
“President Trump has the constitutional power to ‘nominate’ Judge Barrett to be a Supreme Court Justice, and the Senate has the constitutional power to ‘consent’ to that,” Eugene Volokh, a professor at UCLA School of Law, told CNN. “That’s all the Constitution says on the subject, and no precedents have added any extra requirements to that.”
Josh Blackman, a South Texas College of Law professor who specializes in constitutional law, told CNN, “I have no idea what VP Biden meant.”
“The Constitution gives the Senate the power to hold a hearing,” Blackman added. “There is nothing unconstitutional about confirming Judge Barrett.”
In defense of Biden’s claim, campaign spokesman Andrew Bates also added that “The structure and principles of our Constitution stand against this divisive and extreme power grab that Donald Trump and Mitch McConnell are carrying out in order to undo life-saving protections for Americans suffering from preexisting conditions. Ramming through this nomination after millions of Americans have already voted is contemptuous of the essential democratic structure that is the bedrock of the Constitution.”
“Most of what the Constitution forbids is not written down,” Tribe noted.
According to Tribe, Barrett’s nomination process taking place before the election avoids consent by the governed, misuses the Senate’s power of advice and consent, and violates the commitment to honor and decency he believes the framers intended those chosen to serve the American people must uphold.
“The sheer power to appoint a Supreme Court justice when you’ve got the votes is not in question,” Tribe said. “The question is what principles apply.”