When Democratic presidential candidate Joe Biden was asked last week if voters deserved to know whether he would pack the Supreme Court, he replied, “No, they don’t.”
It was a stunning answer. Biden said the American people will “know my opinion on court-packing when the election is over.”
On Monday, he said he’s “not a fan” of expanding the court, but that is far from saying he won’t do it. And it is his refusal to rule out court-packing that is driving the current speculation.
Biden suggests court-packing is an idea Republicans have come up with to distract the American people during the presidential campaign. Sorry, it was Senate Democrats who raised the prospect last year, when they warned justices in an amicus brief: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ “
Biden’s running mate, Sen. Kamala Harris, D-Calif., said during the primaries that she was “absolutely open” to packing the court. Democratic Sens. Cory Booker, N.J., Amy Klobuchar, Minn., Elizabeth Warren, Mass., and Kirsten Gillibrand, N.Y., are all on the record saying much the same. And Senate Minority Leader Charles Schumer, N.Y., warned just a few weeks ago that if Republicans confirm Judge Amy Coney Barrett for the Supreme Court, “Everything is on the table.” It is Democrats, not Republicans, who have raised the issue.
During the primaries, Biden opposed court-packing. In July, he said in Iowa, “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.” During a primary debate, he said, “I would not get into court-packing. 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.” So why not just repeat those words and be done with it?
Biden instead said the Republican effort to confirm Barrett is “the court-packing the public should be focused on.” Sorry, filling existing vacancies is not court-packing. Court-packing has a clear definition—increasing the number of justices. Republicans have not done that—not when they declined to move on President Barack Obama’s nomination of Merrick Garland in 2016 and not today as they move to confirm Barrett to fill the vacancy left by the death last month of Justice Ruth Bader Ginsburg.
If Ginsburg’s priority was to have a say in who would replace her, she could have done what Justice Anthony Kennedy did and retired when a president she trusted was in office and Democrats controlled the Senate. Indeed, Kennedy, who stepped down at 82, effectively chose his successor, suggesting that Trump consider his former clerk, Brett Kavanaugh, for the high court. Ginsburg could have done the same. Instead, she chose to stay on until age 87, despite being diagnosed with pancreatic cancer during Obama’s first year in office. That was certainly her prerogative. But the risk was that a Republican president and a Republican Senate would determine her successor.
There is no justification for Democrats to use her untimely passing as one of their pretexts for court-packing—an idea Ginsburg abhorred. In an interview with NPR last year, Ginsburg said, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court ... If anything [it] would make the court look partisan. It would be ... one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’ “
Ginsburg was not alone in criticizing FDR’s 1937 court-packing attempt. At a 1983 hearing, Biden called it “a bonehead idea” and a “terrible, terrible mistake” that would have called into question the court’s independence. In a 1987 speech, Biden praised Democrats for standing up to Roosevelt and approvingly quoted the report issued by the Democratic-controlled Judiciary Committee, which called FDR’s proposal “an invasion of judicial powers . . . which should be so emphatically rejected that its parallel will never again be presented to the free representatives of a free people in America.” In a 2005 floor speech, Biden said of FDR’s court-packing gambit, “It took an act of courage on the part of his own party institutionally to stand up against this power grab.”
Well, today it is members of his own party in Congress who are pushing this power grab. Will Biden have the courage to stand up to it?