Bench Memos

Law & the Courts

Biden Undercuts Left on Barrett Nomination and Court-Packing

In last night’s debate (transcript here), Joe Biden severely undercut both the Left’s opposition to the Barrett nomination and its hope to pack the Supreme Court.

Joe Biden based his opposition to Senate action on the Barrett nomination on the proposition that “we’re in the middle of an election already” (“[t]ens of thousands of people already voted”) and that “the American people have a right [via the election] to have a say in who the Supreme Court nominee is.”

As to Judge Amy Coney Barrett herself, Biden said: “I’m not opposed to the justice, she seems like a very fine person.” With that comment, Biden torpedoed the Left’s (absurd) efforts to try to demonize Barrett, and by referring to her as “the justice” he inadvertently treated her confirmation and appointment as a fait accompli.

Biden also flatly refused to take a position on the Left’s court-packing plan (as well as on ending the Senate’s legislative filibuster):

Chris Wallace: [I]f Senate Republicans go ahead and confirm Justice Barrett there has been talk about ending the filibuster or even packing the court, adding to the nine justices there…. So my question to you is, you have refused in the past to talk about it, are you willing to tell the American tonight whether or not you will support either ending the filibuster or packing the court?

Biden: Whatever position I take on that, that’ll become the issue. 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.

Trump: Are you going to pack the court?

Biden: Vote now.

Trump: Are you going to pack the court?

Biden: Make sure you, in fact, let people know, your Senators.

Trump: He doesn’t want to answer the question.

Biden: I’m not going to answer the question.

Trump: Why wouldn’t you answer that question? You want to put a lot of new Supreme Court Justices. Radical left.

Biden: Will you shut up, man?

By refusing to take a position in support of the Left’s court-packing plan, Biden has forfeited the ability to claim, if he wins, that the American people have given him a mandate to pack the court. And under his own theory that “we’re in the middle of an election already,” it’s too late for him to change course.

Justice Ruth Bader Ginsburg, of course, also opposed the Left’s court-packing plan. From Nina Totenberg’s account of her interview with Ginsburg last year:

“Nine seems to be a good number. It’s been that way for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”…

Roosevelt’s proposal would have given him six additional Supreme Court appointments, expanding the court to 15 members. And Ginsburg sees any similar plan as very damaging to the court and the country.

“If anything would make the court look partisan,” she said, “it would be that — 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.’”

That impairs the idea of an independent judiciary, she said.