“I would not get into court-packing,” Joe Biden said last October in a Democratic debate. “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.”
Biden was right then. Unfortunately, that was last year. Now that Democrats are red hot with rage over the nomination of Amy Coney Barrett, times have changed. In Tuesday night’s debate, Biden was unwilling to rule out packing the courts.
When moderator Chris Wallace asked Biden a simple question, “Are you willing to tell the American tonight whether or not you will support either ending the filibuster or packing the court?,” Biden gave a gobbledygook non-answer.
“Whatever position I take on that, that’ll become the issue,” Biden said. “The issue is the American people should speak. You should go out and vote. You’re voting now. Vote and let your Senators know strongly how you feel.”
Huh?
Refusing to answer the question, in the face of pestering from Trump, is what eventually led Biden to snap, “Shut up, man!”
While that might be what most people remember from that exchange, it is disturbing that Biden would cave in to the demands of the radical Left by even entertaining the destructive idea of court-packing. It is a dodge he suddenly began executing on Sept. 21, three days after the death of Justice Ruth Bader Ginsburg, when Democratic activists began using the threat of court packing to dissuade Republican senators from confirming a nominee this year.
On an issue as historically volatile as court-packing, it is unacceptable for a presidential candidate to refuse to take a position. It shows a toxic admixture of contempt for the voters and political cowardice. Imagine what would happen if it became standard for candidates to refuse to take positions on an issue because it might become an actual issue.
History, tradition, and the late Justice Ginsburg herself all argue against adjusting the number of Supreme Court justices. Yes, the Constitution itself does not specify the number of justices, but the maximum in practice has always been nine, except for a brief time when the exigencies of the Civil War led to a temporary use of 10. Since 1869 — yes, for 151 years — the court size has been set at nine. It’s a size that has proved practical — large enough for diversity of judgment and outlook, small enough to be administratively manageable.
That’s why, when Biden’s left-wing primary opponents last year called for court-packing, Ginsburg herself pointedly shot down the idea. “Nine seems to be a good number,” she said, “and it’s been that way for a long time.”
The other, even more compelling, reason for keeping the court’s size fixed is to avoid further politicization of the administration of justice. While the confirmation process for federal courts has been horrendously politicized since Biden and Ted Kennedy nastily ambushed Judge Robert Bork in 1987, the Supreme Court’s actual conduct consistently has defied facile ideological analysis. Two supposedly liberal justices joined the central holding (but not the specific remedy) in the year 2000 election-dispute case of Bush v. Gore. The Republican-appointed Chief Justice John Roberts saved Obamacare. The Trump-appointed Neil Gorsuch wrote the recent controversial decision creating rights specifically for transgender people.
But if a president caves in to the hardball, activist wing of his party and expands the court to create a leftist majority, specifically to achieve political payback, then he will strip away the high court’s remaining veneer of being above politics. Instead of justice being blind, it would be seen as nakedly partisan.
That’s why not even President Franklin Roosevelt, at the very height of his power, succeeded in the only serious attempt at court-packing since 1869. When he tried to expand the court from nine to 15 justices in 1937, while Democrats and Progressives held 70 of 96 Senate seats, a bipartisan super-majority shot down his effort, 70 votes to 20.
Indeed, the effort was seen as so blatant a power grab that Roosevelt’s own vice president, John Nance Garner, went to the Senate and, when the plan was formally introduced, held his nose and gave a thumbs-down gesture.
Garner was right. Ginsburg was right. Biden is wrong to entertain the idea. Court-packing absolutely should be an “issue,” and opposition to it is the only responsible position.
