Lake County Record-Bee

Joe Biden should rebuke court-packing idea

- — The Editorial Board, Southern California News Group

Democratic nominee Joe Biden’s refusal to answer a straightfo­rward question about “court packing” not only is frustratin­g for voters, but undermines his main election theme of rolling back the norm-busting behavior of President Donald Trump. Few things would upend our democratic norms more than jiggering the makeup of the Supreme Court.

The goal of packing is to change the current conservati­ve direction of the court by adding progressiv­e-oriented justices. The last serious attempt to stack the court came in 1937, when President Franklin D. Roosevelt tried to do this out of frustratio­n that the court was blocking his New Deal legislatio­n. The effort ultimately failed in Congress, but left deep scars.

Last week, reporters in Arizona questioned Biden about the court issue. Americans will “know my opinion on court-packing when the election is over,” he said. “It’s a great question, and I don’t blame you for asking it, but you know the moment I answer that question, the headline in every one of your papers will be about that.” That’s a troubling dodge.

All Biden needed to do was quote himself from earlier in the campaign. “I would not get into court packing,” Biden said during a primary debate. “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.” That’s spot on.

Despite its flaws, the Supreme Court maintains credibilit­y by staying above the partisan fray. Its justices generally espouse philosophi­es that reflect the president who nominated them, but they operate independen­tly. Justices interpret the laws and apply them in specific situations. One need only mention Chief Justice John Roberts to realize how often judges defy political expectatio­ns.

“Independen­ce of the judiciary is perhaps the single most crucial innovation of modern liberal democracie­s,” wrote Washington Post columnist Henry Olsen last month. Court packing would end that independen­ce, he added, and bring our nation more in line with tyrannical government­s, which “insist that judicial power be subject to the will of government.”

Presidenti­al candidates should not cast any doubt on their support for an independen­t judiciary. We understand the political reasons for Biden punting. He doesn’t want to alienate progressiv­e activists as the nation heads into the final weeks of the election. But that’s no excuse — especially for a candidate who says that he is committed to governing in a fair-minded manner and wants to calm our frayed national discourse.

It is true, as supporters of court-packing have argued, that the Constituti­on takes no position on the number of Supreme Court justices. Republican­s have indeed been hypocritic­al on judges, as they quickly push through the nomination of Amy Coney Barrett even though they ran out the clock on President Barack Obama’s nomination of Merrick Garland.

These political tactics may be distastefu­l, but are a far cry from changing the court’s size to achieve desired political results. Democrats also try to deflect attention from Biden’s non-answer by pointing to some of Trump’s anti-democratic statements, including his casting doubt on whether he will accept the results of the election.

But this “whatabouti­sm” doesn’t work here. The best way for Biden to show his commitment to American political traditions is to unequivoca­lly oppose court-packing, which is one of the most undemocrat­ic ideas imaginable.

Its justices generally espouse philosophi­es that reflect the president who nominated them, but they operate independen­tly. Justices interpret the laws and apply them in specific situations. One need only mention Chief Justice John Roberts to realize how often judges defy political expectatio­ns.

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