Sen. Tim Kaine (D-Va.), Hillary Clinton’s running mate, made news last week when he told The Huffington Post that a Senate controlled by Democrats might eliminate the de facto 60-vote threshold for confirming Supreme Court justices.
Democrats “will change the Senate rules to uphold the law,” Kaine said in the interview, where he also took Republican senators to task for their stated plans to stonewall anyone Clinton might nominate to the high court.
But there was a slight problem. During that interview, Kaine made a mistake about something that’s actually not in the Constitution: how big or small the Supreme Court should be.
“The Constitution doesn’t set the size of the court. It sets a maximum, I think, of 15,” he said. “But since the Judiciary Act of 1869, it’s been a nine-member court. That’s what the statute says.”
Well ― sort of. Kaine is absolutely correct that the size of the Supreme Court is set by statute and that it’s stayed the same for nearly 150 years.
Where Kaine missed the mark is the idea that Article III of the Constitution puts a cap on the number of justices there could be. In reality, the constitutional text is very vague about the structure of the court ― its language leaves it up to lawmakers to fill in the blanks and amend the court’s makeup as they please. Kaine acknowledged as much.
“Congress could change it, if Congress wanted to and had the votes, but Congress won’t,” he said. “So until Congress does, that’s the size of the court.”
Asked about the error, a Clinton campaign aide said that Kaine misspoke, and that he’d gotten confused with another bit of Supreme Court lore: President Franklin D. Roosevelt’s controversial court-packing plan of 1937.
If that’s indeed what Kaine meant, it’s actually pretty impressive. Just this week, The New Yorker had a column comparing Roosevelt’s plan to fill the Supreme Court with friendly liberal judges ― a scheme that never materialized ― with Republicans’ novel efforts to shrink the court because a bench of eight instead of nine is suddenly a good thing.
Well played, Tim Kaine. You get a 7 out of 10 on your Supreme Court quiz.