Silence on packing court not helping Biden
Two national debates — two instances of Democratic candidates evading the issue of what they plan to do with the Supreme Court.
The question is whether Democratic presidential nominee Joe Biden will push to add seats to the nation’s highest court if he wins in November and his party gains control of the Senate.
It’s an idea some Democrats support as a way of countering two hardball moves by the GOP over the past four years: refusing to consider Barack Obama’s 2016 nomination of Merrick Garland (thereby leaving the court with a vacancy for more than a year) and currently attempting to fast-track the nomination of Amy Coney Barrett at a time when people already are casting their votes in the presidential election.
President Donald Trump, who trails Biden by double digits in most national polls, is encouraging voters to believe that Biden will try to “pack the court” if he gets the chance.
Biden’s eagerness to change the subject has been painfully evident. Last week, when Trump goaded him on the issue, Biden said: “I’m not going to answer the question.”
On Wednesday, Vice President Mike Pence confronted Biden’s running mate, California Sen. Kamala Harris, with the same question. She changed the subject.
Republicans interpret this evasiveness as proof Biden intends to pack the court, but isn’t willing to level with the public about it for fear of alienating moderate swing voters.
I think the opposite is true. Biden is an institutional traditionalist at heart. Well before becoming the Democratic nominee, he indicated he didn’t want to tamper with the structure of the Supreme Court, which has had nine justices since 1869.
“I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” Biden said early last year. He later pointed out that if Democrats add seats as an act of retribution, Republicans will do the same when they return to power.
Almost certainly, Biden now is avoiding the issue not because he plans to pack the Supreme Court, but because he plans not to do so. He doesn’t want to irritate young, ultra-progressive Democrats who grumble their party routinely brings a butter knife to a parliamentary gunfight. At the very least, these progressives want to maintain the court-packing option as leverage during the Barrett hearings.
Politically, Biden is boxed in. Committing to either position will be damaging to him, so he has settled on the less dangerous (but also less honest) noncommittal approach.
“The moment I answer that question, the headline in every one of your papers will be about that rather than focusing on what’s happening now” with the Barrett confirmation, Biden said.
All this slippery rhetoric does Biden no favors.
By blatantly punting on the court-packing question, he has ensured that the issue will fester. More importantly, he has an obligation to level with American voters before they cast their ballots.
You can’t claim to be a champion of transparency and tell people they’ll hear your position on a major issue the day after the polls close.
There also is a practical governing issue to consider.
If Biden announces, after winning the election, that he wants to add seats to the court, he will have no mandate for that action, because he didn’t run on it and didn’t sell it to the American public.
Franklin Roosevelt learned the pitfalls of that approach when he tried to pack the Supreme Court in 1937.
Roosevelt was coming off a historic landslide victory in which he carried 46 of 48 states. He felt stymied by a Supreme Court that was shooting down some of his boldest New Deal initiatives.
So he introduced legislation that would enable him to add a seat every time a justice reached age 70, with a maximum of six additional justices.
Roosevelt’s court-packing gambit was met with bipartisan hostility and died a painful legislative death. By waiting until after the 1936 election to make such a brazen power grab, Roosevelt looked like he was trying to pull a fast one on the American public.
“If he had the court packing plan in mind,” the Daily Press in Newport News, Va., wondered, “why did he not mention it when he was offering for re-election?”
It’s worth remembering, however, that these kinds of judiciary machinations go back to the Founding Fathers we’ve been taught to venerate.
Only weeks before John Adams was scheduled to surrender the presidency to Thomas Jefferson, Adams’ fellow Federalists in Congress passed a law reducing the size of the court from six to five, just to hinder Jefferson.
A year later, Jefferson’s Democratic-republicans reinstated that sixth seat.
That historical precedent aside, it would be foolish for Biden to spend tons of political capital, right off the bat, on such a divisive issue when he would need to concentrate on health care, economic stimulus, the environment, immigration reform and gun control.
He knows it. He just doesn’t want to say it.