Daily Camera (Boulder)

Bi­den and Har­ris dodge ques­tions about ex­pan­sion

- By Bill Bar­row US Elections · U.S. News · US Politics · Discrimination · Politics · Elections · Human Rights · Society · Joe Biden · Phoenix · U.S. Supreme Court · Kamala Harris · Republican Party (United States) · Democratic Party (United States) · Mike Pence · United States Senate · Barack Obama · Bernie Sanders · Donald Trump · Congress of the United States · Ruth Bader Ginsburg · Charles Schumer · Antonin Scalia · Amy Coney Barrett

PHOENIX — There are few top­ics that Joe Bi­den isn’t will­ing to opine on — ex­cept the Supreme Court.

The Demo­cratic pres­i­den­tial nom­i­nee and his run­ning mate, Ka­mala Har­ris, are re­fus­ing de­mands from Repub­li­cans — and some fel­low Democrats — to say whether they would seek to ex­pand the num­ber of jus­tices on the Supreme Court.

Har­ris dodged per­sis­tent ques­tion­ing about the is­sue on Wed­nes­day dur­ing her de­bate against Vice Pres­i­dent Mike Pence. And fac­ing pres­sure to take a stance dur­ing a cam­paign swing through Phoenix on Thurs­day, Bi­den of­fered a par­tic­u­larly terse re­sponse.

“They’ll know my po­si­tion on court pack­ing when the elec­tion is over,” he said.

In the final weeks of the cam­paign, Bi­den is in a bind when it comes to the fu­ture of the ju­di­ciary. Repub­li­cans, in­creas­ingly fear­ful of los­ing both the pres­i­dency and the Se­nate, are seiz­ing on the is­sue to make a last­minute ar­gu­ment to vot­ers that a Bi­den ad­min­is­tra­tion would up­end norms and in­stall lib­er­als on an ex­pand­ing Supreme Court. Some pro­gres­sive Democrats are press­ing Bi­den to em­brace all means pos­si­ble to counter Repub­li­can power plays that have pushed the court to the right.

The de­bate is likely to in­ten­sify next week when Se­nate Repub­li­cans start con­fir­ma­tion hear­ings for Amy Coney Bar­rett. She would ce­ment a 6-3 con­ser­va­tive ma­jor­ity on the court, the bal­ance al­ready tilted by Repub­li­cans’ hold­ing open a va­cancy in the 2016 elec­tion year by re­fus­ing to con­sider Pres­i­dent Barack Obama’s nom­i­nee.

Bi­den and Har­ris have said the Se­nate should wait un­til af­ter the elec­tion to fill the seat. Bi­den has pledged to se­lect the first Black fe­male jus­tice if given a chance. But he and Har­ris are oth­er­wise tak­ing pains to avoid talk­ing about their vi­sion for the Supreme Court’s fu­ture.

Tad Devine, a former top ad­viser to Sen. Bernie Sanders’ pres­i­den­tial cam­paign, said that Trump and his al­lies are push­ing the is­sue to un­der­cut Bi­den’s open­ing with mod­er­ate Repub­li­cans and that the ticket is wise to dodge the ques­tion for now.

“When you choose to en­gage on any is­sue like this, you’re go­ing to cre­ate news cov­er­age, aware­ness and back and forth,” Devine said. “And when you refuse to en­gage, you make it re­ally hard for the side that’s try­ing to cre­ate the en­gage­ment.”

Repub­li­cans face po­lit­i­cal vul­ner­a­bil­i­ties re­lated to the Supreme Court as well. In the af­ter­math of Pres­i­dent Don­ald Trump’s coro­n­avirus in­fec­tion, Bar­rett’s nom­i­na­tion hasn’t be­come the ral­ly­ing cry the party hoped for.

Democrats also are try­ing to shore up any ad­van­tage by em­pha­siz­ing that a con­ser­va­tive court could fi­nally over­turn the 2010 Af­ford­able Care Act, which has grown in pop­u­lar­ity over time but faces its lat­est chal­lenge in oral ar­gu­ments slated for Nov. 10, a week af­ter Elec­tion Day.

Polling sug­gests most Amer­i­cans want the Se­nate to wait on con­firm­ing a new jus­tice un­til af­ter the elec­tion.

In­deed, the Con­sti­tu­tion says noth­ing about the num­ber of Supreme Court jus­tices or lower court judges, only that the pres­i­dent nom­i­nates fed­eral ju­rists and the Se­nate con­firms them. The high court, in fact, has had as many as 10 jus­tices since Congress set the orig­i­nal ros­ter of six in 1789.

There are no for­mal pro­pos­als to add jus­tices, and the court wasn’t a topline is­sue in the pres­i­den­tial cam­paign be­fore Ruth Bader Gins­burg’s death last month. But since then, Se­nate Mi­nor­ity Leader Chuck Schumer has said “noth­ing is off the ta­ble” if Repub­li­cans rush Bar­rett’s con­fir­ma­tion.

The mat­ter presents Bi­den with un­com­fort­able re­al­i­ties. A former vice pres­i­dent and six-term sen­a­tor, he ven­er­ates the Se­nate and a by­gone era of deal-mak­ing that he insists is pos­si­ble again. But the cur­rent con­fir­ma­tion pol­i­tics don’t eas­ily fit that vi­sion.

Fur­ther, Bi­den’s re­luc­tance to dis­close a po­si­tion on court ex­pan­sion stands out from his will­ing­ness to en­gage on other di­vides within the broad coali­tion he’s try­ing to mar­shal against Trump. The pro­gres­sive move­ment clam­or­ing for a larger Supreme Court also wants a sin­gle­payer health in­surance sys­tem, tu­ition-free col­lege for all Amer­i­cans and a com­plete phase-out of fos­sil fu­els. Anti-trump Repub­li­cans con­sid­er­ing Bi­den still pre­fer the pres­i­dent’s tax and reg­u­la­tory poli­cies to Bi­den’s.

The Demo­cratic nom­i­nee has told them all no — un­like his sidestep­ping on court ex­pan­sion.

“The mo­ment I an­swer that ques­tion, the head­line in ev­ery one of your pa­pers will be about that, other than fo­cus­ing on what’s hap­pen­ing now,” Bi­den told re­porters, re­fer­ring to Bar­rett’s fast-paced con­fir­ma­tion process af­ter mil­lions of vot­ers are al­ready cast­ing early bal­lots. “They’re deny­ing the Amer­i­can peo­ple the one shot they have, un­der con­sti­tu­tional law, to be able have their in­put” by elect­ing a pres­i­dent, Bi­den said.

His predica­ment is an out­growth of years of games­man­ship across both par­ties.

Repub­li­cans’ push for Bar­rett is at odds with the rea­son­ing they used to ig­nore Obama’s nom­i­na­tion of Mer­rick Gar­land af­ter Jus­tice An­tonin Scalia died nine months be­fore the 2016 elec­tion. Democrats in 2016, in­clud­ing Bi­den, made an ar­gu­ment Trump makes now: A pres­i­dent’s power lasts a full four years.

Repub­li­cans abol­ished the fil­i­buster for Supreme Court con­fir­ma­tions in 2017 to fill the seat they’d held open, end­ing the long-stand­ing prac­tice of ef­fec­tively re­quir­ing 60 se­na­tors to con­firm a jus­tice.

 ?? Bren­dan Smialowski / Getty Im­ages ?? Demo­cratic pres­i­den­tial can­di­date former U.S. Vice Pres­i­dent Joe Bi­den leaves af­ter speak­ing dur­ing a drive-in rally out­side the South­east Ca­reer and Tech­ni­cal Academy Fri­day, in Las Ve­gas, Nev.
Bren­dan Smialowski / Getty Im­ages Demo­cratic pres­i­den­tial can­di­date former U.S. Vice Pres­i­dent Joe Bi­den leaves af­ter speak­ing dur­ing a drive-in rally out­side the South­east Ca­reer and Tech­ni­cal Academy Fri­day, in Las Ve­gas, Nev.

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