Joe Biden is refusing to answer questions about whether he and his party would support packing the Supreme Court and ending the Senate filibuster. Indeed, on Friday a reporter said to him, “Sir I’ve got to ask you about packing the courts. I know that you said yesterday you aren’t going to answer the question until after the election. But this is the No. 1 thing that I’ve been asked about from viewers in the past couple of days. . . . Don’t the voters deserve to know where you stand?”
Biden replied, “No, they don’t deserve — I’m not going to play his [Trump’s] game.”
Biden seems to think that all he has to do to occupy the Oval Office in January is run out the clock and avoid angering his activist left-wing backers close to the election.
Court packing may not be the deciding issue in the presidential race. But it could be in close Senate races where several Democratic candidates are imitating Biden’s silence and being pummeled for it by effective GOP opponents.
In Maine, Democratic candidate Sara Gideon won’t rule out backing a court-packing plan. Colorado Democrat John Hickenlooper gave an embarrassing non-answer in his debate this past week with Republican senator Cory Gardner. Iowa Democrat Theresa Greenfield was once opposed to court packing but now can’t be pinned down on the issue in her race against GOP senator Joni Ernst.
The chances of Democrats winning a Senate majority for Democrats are up in the air because of court packing.
The irony is that their candidates are taking all this abuse over an idea that is unlikely to happen. Yet it may nonetheless cost them control of the Senate.
Let’s look at the state of play in Senate races. Democratic senator Doug Jones is badly trailing his GOP opponent in Alabama. That’s one seat gone. Michigan Democratic senator Gary Peters is up only 47 percent to 44 percent in the latest CBS Battleground poll. That’s a seat in jeopardy. Republican have a long-shot chance of winning in Minnesota, where Democratic senator Tina Smith leads by 8.5 points in the RealClearPolitics average of polls.
Let’s assume Democrats lose Alabama and keep Michigan and Minnesota. They will have to take back four GOP-held seats to win a tie in the Senate. That tie could then be broken by Kamala Harris if the Biden-Harris ticket wins.
But with only 50 senators, Democrats would need the vote of West Virginia’s Joe Manchin to pass court packing and end the filibuster. Manchin is a moderate Democrat who may not be susceptible to pressure. He isn’t up for reelection until 2024 when he will be 77 and might retire. Manchin has bluntly said that he opposes court packing and abolishing the filibuster. Arizona Democratic senator Kyrsten Sinema has also said she opposes court packing.
If the filibuster remains in place, Democrats would be unlikely to pass a bill admitting either the District of Columbia or Puerto Rico as a state as a means of gaining additional senators.
And unless they nuke the filibuster, Democrats can’t move forward on their other liberal legislative priorities such as the Biden version of the Green New Deal, gun control, taxpayer financing of campaigns, restricting independent political speech, and weakening ballot integrity protections.
It would be arduous for Democrats to deal with a Majority Leader McConnell to win Senate confirmation of every judge and cabinet member.
But Democrats would find it almost as painful to deal with Joe Manchin as the swing vote in the Senate. There’s not enough pork barrel that can be shipped to West Virginia to attempt to rent Joe Manchin’s vote on big issues.
So, to govern without Manchin’s vote, and to have a chance to enact their agenda, Democrats need at least 51 senators. So, assuming a loss in Alabama, they have to beat five Republican incumbents.
Democrats think there are three races they’re likely to win: Maine, Colorado, and Arizona.
But of the next closest six races, they must win at least two. That may not be easy.
North Carolina’s Senate race has been upended by reports that Democratic nominee Cal Cunningham, a lieutenant colonel in the Army Reserve, had an affair with the wife of Jeremy Todd, a junior officer with whom he served. The U.S. Army Reserve Command is investigating Cunningham for a possible violation of the Code of Military Justice. Todd has called on Cunningham to leave the race.
South Carolina, Georgia, Iowa, Montana, and Alaska are the other races where Democrats could pull off an upset.
But five of those six races are in deep-red states that consistently vote Republican in most statewide elections.
Iowa is a swing state where anything could happen.
Republicans in all six states are telling voters that a Democratic Senate majority will unleash plans to pack the Supreme Court, undermine Second Amendment rights, ram through the Green New Deal by regulatory edict, and impose a radical cultural agenda.
Democrats who might be able to defeat a GOP incumbent if the race were about other issues might lose if the race becomes focused on an idea as unpopular as court packing.
Moderate voters who are thinking about voting for Biden because they dislike Trump may well be scared by the radical idea of packing the Supreme Court.
If Biden were a less cautious, and less party-trained politician, he might rethink his silence on court packing. He could take a lesson from Bill Clinton, who convinced moderate voters that he wasn’t a knee-jerk liberal when he condemned rapper “Sister Souljah” for her anti-police lyrics.
After all, Biden opposed court packing as recently as last year, in two Democratic-primary debates. He would simply be returning to a position he has held for more than 15 years.
But I predict he won’t do it. He has consistently shown an inability to break with his party’s base.
But what will happen if key Democratic Senate candidates take the same stance as Biden even though they are running in largely red states? The last time court packing was attempted — by Franklin Roosevelt, in 1937 — it stirred up passionate opposition and contributed to Democrats’ losing eight Senate seats and 62 House seats in the 1938 midterm elections.
Nationally, only 34 percent of registered voters in a new YouGov poll support expanding the number of justices on the Supreme Court. In red states where Democrats need to beat GOP incumbents, support for such an extreme idea is clearly well below that.
Indeed, polls show strong support for a “Keep Nine” amendment that simply says, “The Supreme Court of the United States shall be composed of nine Justices.” The amendment has been endorsed by nine former Democratic state attorneys general. Three of those former AGs recently wrote in the New York Daily News that, in regard to court packing, “we can think of few threats more serious to the future of constitutional checks and balances that have preserved our Republic for the last two centuries.” They reminded their readers that the late Ruth Bader Ginsburg called increasing the number of justices on the Supreme Court a “bad idea.”
It’s unlikely that the silent Senate candidates running as Democrats this year will break with Biden and oppose court packing. Biden apparently believes he can get away with his evasive maneuvers. But it may be a different story for his fellow Democrats further down the ticket.
If Democrats end up electing Joe Biden, they will have succeeded in turning the presidential race into a referendum on President Trump’s personality. But if they fail to win the Senate, it will be because of an issue they wisely avoided endorsing in their party platform: overturning a 151-year-tradition of having nine justices on the Supreme Court.
By stubbornly remaining silent on something that wasn’t even part of their agenda a few months ago, they may convince voters they really are the radicals they are accused of being. It could cost them the Senate.