No, Biden and Harris Don’t Owe You an Answer on Court Packing
The Democratic nominees are wise to not give in to the temptation to give a firm answer to this “gotcha” question.
Ever since the passing of Ruth Bader Ginsburg and the subsequent announcement by Trump and Mitch McConnell that the seat would be filled before the next president took office there has been a lot of chatter among the commentariat about the possibility that Biden, should he win, would pack the court in order to mitigate its tremendous rightward lurch (if Amy Coney Barrett is confirmed, SCOTUS would be skewed 6 to 1 in favor of the conservatives).
In fact, it bubbled to the surface yet again in the debate between Mike Pence and Kamala Harris, with Pence asking again and again whether Harris would say one way or the other whether a Bide/Harris administration would set about packing the court. Setting aside the fact that Pence, in typical male fashion was demanding an answer he had no right to (he wasn’t the moderator and was thus not in a position to ask a question in the first place), it was a revealing exchange. Trump and company clearly think that the threat of “the libs” remaking the court in their own image will frighten their supporters into continuing to support them, despite the fact that their response to the pandemic has been truly disastrous.
The unfortunate thing is, they’re probably right.
It’s well-documented that the courts motivate those on the right more than it does those on the left. In fact, it was the possibility of Trump appointing pro-life and anti-LGBTQ+ justices that motivated many evangelicals to full-throatedly support Trump in 2016, despite the fact that he seemed to represent the antithesis of everything they stood for. The passing of Justice Ginsburg, however, seems to have changed that calculus somewhat, and those on the left seem to have finally come to the realization that a rabidly conservative Supreme Court could stymy any progressive efforts that a Democratic government — even if it comprised the White House and both the House and the Senate — would be able to enact.
As a result, there’s been a rising chorus on both the right and the left regarding court packing, all of them demanding an answer. The right wants to use it as a cudgel that they can beat Biden and the left with, accusing them of being willing to overhaul the system in service to their “radical socialist” agenda. The left sees court packing as the only alternative to the GOP’s flagrant hijacking of the federal court system. Both, of course, see Biden’s refusal to give a firm commitment as some sort of betrayal, and the press in particular continues to pound the drum. “Biden Campaign Continues To Deflect on Court-Packing” fretted NPR; “Biden Again Deflects on Court Pacing Question” was a similar headline in Politico. As some have said on Twitter, court-packing is shaping up to be the “but her e-mails” of 2020.
This is infuriating for a number of reasons.
To begin with, where is the outrage on the right for McConnell’s and the GOP’s general hypocrisy regarding their rush to fill RBG’s seat in an election year, when they moved heaven and earth to avoid doing so in 2016? For that matter, why does court-packing cause them to have a pang of conscience, when they’ve already pulled all sorts of dirty tricks to ensure that they have control of the judiciary? Of course, we all know by now that moral and ethical consistency is of absolutely no interest to McConnell nor his enablers, but even so it’s incredibly frustrating to see those on the right hand-wringing now that they face the same sort of manipulation that they’ve so often employed. It is, frankly, pretty rich to see the likes of Hugh Hewitt making the disingenuous claim that Biden has to take a stance on court-packing for the good of the country.
As far as the left is concerned…they should realize that if either Biden or Harris were to come out and say that they were to pack the courts that it would be a political firestorm. While it would be cheered by those on the left, independents and those in the middle would (rightly) see it as a naked power grab of the sort that the American electorate as a whole does not like (or at least that’s what they say out loud). Sometimes, as unpleasant as it is, one has to play the game and keep up appearances. After all, Biden is running as the candidate of normality, and he has to do everything that he can to make sure that that image stays intact.
Is this phenomenally and astoundingly unfair? Absolutely it is. However, as the old saying goes, life isn’t fair. Biden and Harris are wise not to give up their secrets because they know that, in Admiral Akbar’s words, it’s a trap. If they commit to court-packing, they’ll take a pretty big hit politically; there’s far less risk, and potentially far greater reward, if they continue to hold their cards close to the chest. Personally, I have no doubt whatsoever that the Democratic leadership at all levels has every intention of remaking the federal judiciary should they get the opportunity. After all, there’s nothing that says that the Supreme Court must be nine justices; Congress has the authority to change that at any time. If Democrats are wise, they’ll wait until the election is over and then, flush with victory, do as they please.
It’s said that discretion is the better part of valor, and while some will no doubt see their caginess as just another example of Democratic spinelessness in the face of Republican opposition, I think the opposite is true. Biden and Harris are shrewd politicians. They understand the nuances of electoral politics in ways that those who are more straightforwardly partisan do not. They understand the importance of necessary fictions, and their campaign is wise not to commit one way or the other.
Hopefully, the press — who continue to hound the Biden campaign about this issue — will realize that there are much more important stories that they should be covering, including: Trump’s taxes; the fact that COVID cases appear to be once again on the rise; the attempts of Trump and other Republicans to sabotage the election; the list goes on and on.
Given the fact that they continue to refuse to learn the lessons of 2016, I’m not holding my breath.