Biden wise to avoid issues like packing high court

In last week’s Cleveland debate, Democratic nominee Joe Biden was asked if he supported progressive demands for ending the Senate filibuster and “packing” the Supreme Court to offset its conservative majority.

Biden sidestepped moderator Chris Wallace’s question, contending, “Whatever position I take on that, that’ll become the issue.” He urged voters to tell their senators how they feel about it.

Correctly sensing his opponent’s evasion, President Donald Trump asked him, “Why wouldn’t you answer that question?” Then, Trump answered his own question: “You want to put a lot of Supreme Court justices. Radical left.”

In fact, Biden is on the record opposing both moves. But the president was trying to widen a Democratic fault line between the former vice president and progressives who want the next Democratic administration to push those controversial moves to offset Trump’s nomination of conservative Judge Amy Coney Barrett to the court.

When the issue was raised during the Democratic primaries, Biden opposed both scrapping the filibuster and adding justices. But that was before Justice Ruth Bader Ginsburg’s death and Barrett’s nomination renewed the saliency of the issue.

“We’ll live to rue that day,” he told Iowa Starting Line, a political website, last year. “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.”

Though evasive, Biden’s debate position on court “packing” made political sense, for at least four reasons.

■ It’s unpopular. A recent Washington Post-ABC News poll showed that only about one-third of adults favored increasing the number of justices to give the presidential winner more influence over its composition, while more than half were opposed. But a slight plurality of Democrats favored it.

■ It’s unlikely to happen, even if Democrats win the Senate. Any Democratic majority would be small. Besides, not every Democratic senator would favor scrapping the last vestige of the chamber’s historic debate limitation rules, which lets opponents require 60 votes to debate or pass legislation. In recent years, senators scrapped the requirement on nominations, including judicial choices. Ending the filibuster on legislation would almost certainly be necessary to pass a bill expanding the court.

■ A President Biden will have more immediate priorities. If elected, Biden will take office with the COVID19 pandemic almost certainly still raging and the economy still needing governmental help. The last thing he will need is the distraction of a divisive fight on Senate rules and expanding the Supreme Court.

■ It would exacerbate partisan divisions. Biden has often expressed the hope that, once elected, he could persuade some Republicans to support some of his economic and health initiatives to deal with the dire situation he is likely to inherit. But that’s less likely if the year begins with a bitterly partisan debate over expanding the Supreme Court.

What has frustrated the Democrats, even before Ginsburg’s recent death, is that, even though they have held the presidency for 28 of the last 60 years, Democratic presidents have only made four of the last 20 high court nominations.

Part of that has been just bad luck – President Jimmy Carter had no vacancies in four years, while Trump has had three. But part of it stems from the way Republican

Senate Majority Leader Mitch McConnell refused to consider Democratic President Barack Obama’s choice of Judge Merrick Garland for a 2016 vacancy but is moving quickly to install Trump’s pick of Barrett just weeks before the 2020 election.

Democrats have also become increasingly frustrated by the fact that the Constitutional allocation of two senators per state increasingly means that GOP lawmakers from states with a minority of Americans control the Senate, affecting both judicial nominations and allocation of government funds.

Besides enacting filibuster reform, one potentially less controversial way to enhance Democratic strength would be for the Senate to accept Housepassed legislation to grant long overdue statehood to the District of Columbia. But the fact that its two senators would almost certainly be Democrats may keep few if any Republicans from backing it.

That issue could come up in a Democratic Senate next year with Biden’s support. But it also seems unlikely to get higher priority than the country’s health and economic problems.

Meanwhile, Biden is likely to keep avoiding divisive issues like the court and the Green New Deal that would weaken the Democratic Party unity that is helping him in the current election.