By Dan McLaughlin
Thursday, October 22, 2020
Well, we finally have Joe Biden’s response to the demand
for an answer to his plans for Court-packing, the single most radical and
destructive proposal on the table in this election. It’s . . . an obvious
non-answer.
As you will recall from the primaries, Biden thought that
Court-packing — expanding the size of the Supreme Court solely in order to add
judges who will produce the outcomes he wants — was a bad idea likely to set
off endless rounds of partisan retaliation. This is in line with his past
remarks in 1987 and 2005
describing Court-packing as a dangerous, corrupt power grab. Even Bernie
Sanders agreed with Biden on this. Court-packing also polls terribly with the
general public; a late-September ABC News/Washington Post poll
found voters opposed 54–32, an early October Washington Examiner/YouGov poll
found voters opposed 47–34 (with independents opposed 45–32), and the latest New
York Times/Siena poll
found voters opposed 58–31. The latter poll found Court-packing opposed by 65
percent of independents, 28 percent of Democrats, 48 percent of Hispanics, 32
percent of black voters, 71 percent of men, and a majority in every region of
the country. Multiple Democrats in tight Senate races have run
away from Court-packing:
Michigan incumbent senator Gary
Peters (in a tight race against GOP challenger John James) is one, and he’s
joined by a handful of challengers to Republican incumbents: Mark Kelly (facing
Martha McSally in Arizona), Jon Ossoff (facing David Perdue in Georgia),
Theresa Greenfield (facing Joni Ernst in Iowa), Sara Gideon (facing Susan
Collins in Maine), and Cal Cunningham (facing Thom Tillis in North Carolina).
But the idea was popular with the radical elements of the
Democrats’ progressive base, rocketing Pete Buttigieg to national attention
when he proposed it, with Kamala Harris, Elizabeth Warren, and several other
Democratic presidential contenders embracing it. It is beloved by the
progressives who dominate the commentariat. The issue quickly became an acid
test of Biden’s willingness and ability to stand up to anti-constitutional
radicals within his own party, including his own running mate. Biden has
buckled under the strain. He and Harris both entirely avoided discussion of the
judiciary in their convention speeches and both flatly refused to answer
questions on their plans during the debates. Biden told
Chris Wallace, “Whatever position I take, that will become the issue . . . .
I’m not gonna answer the question.” At one point, Biden even told a questioner
that voters
“don’t deserve” an answer on his position.
Even in the cosseted world of the Biden campaign — no
follow-up from Wallace, no questions on Court-packing at
Biden’s NBC town hall, no public appearances by Biden for days on end —
this was unsustainable, so in a CBS News interview released this morning, Biden
promised
. . . a bipartisan commission to kick the can down the road for the first six
months of his term. The commission would “come back to me with recommendations
as to how to reform the court system . . . . It’s not about Court-packing. . .
. There’s a number of alternatives that are — go well beyond packing. . . . It
is a live ball.”
This is a transparent dodge. Joe Biden spent 36 years in
the U.S. Senate, and eight as the vice president, and this is his third
presidential campaign. He was the top Democrat on the Senate Judiciary
Committee for 16 years, chairing it for six. He has given speeches about the
dangers of Court-packing. Unless Biden’s mental state has declined worse than
we think, there is not a chance in the world that he requires a commission to
tell him what to think on this issue. The reality is that Biden is terrified of
his radical base, and lacks the guts to take a stand in public. That bodes
poorly for his presidency across the board.
What does this mean for Court-packing? Clearly, one
reason Biden has not wanted to commit himself on the issue until after the
election is the risk that he might win the election but face a Republican
majority still controlling the Senate, which might take a more hostile approach
to his judicial nominations if he came out in favor of packing the Court. As
Ramesh Ponnuru notes,
delaying the issue for six months would also make it harder to get
Court-packing through the Senate for two reasons: Because it will be further
into Biden’s term and closer to the Senate midterms, and because the Supreme
Court will have finished its first term with Amy Coney Barrett on the bench by
then, and it is highly
likely by that point that alarmist Democratic predictions of the Court
striking down Obamacare will have been proven false. I would add a third: A
proposal this radical is more likely to trigger a major backlash if the
candidate did not campaign on it. That is what happened to Franklin D.
Roosevelt in 1937, having declined
to address agitation from his party’s progressives to run on Court-packing in
1936. Michael Brendan Dougherty is optimistic
that this signals a retreat, given that bipartisan commissions rarely result in
the proposal of radical solutions that then get enacted into law. After all, it
was a Democrat-controlled Senate Judiciary Committee that issued the report in
1937 that branded FDR’s Court-packing plan as a threat so grave that it should
“never again be presented to the free representatives of the free people of
America.”
On the other hand, if Harris takes over for Biden, all
bets are off. The best way for conservatives to stop Court-packing, even if the
Democrats take the White House, is to hold the Senate — and begin building
public support for a permanent
constitutional safeguard.
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