Bench Memos

Law & the Courts

Kamala Harris Whiffs on Barrett Nomination and Court-Packing

Like Joe Biden last week, Kamala Harris in last night’s vice-presidential debate undermined both the Left’s opposition to the Supreme Court nomination of Amy Coney Barrett and its hope to pack the Court.

Harris failed to say anything negative about Barrett. Indeed, she never even mentioned Barrett’s name. From the Left’s perspective, I suppose that’s an improvement on Biden’s “I’m not opposed to the justice, she seems like a very fine person.” Harris’s silence might even have been by design. But if so, it only underscores the remarkable weakness of Senate Democrats’ case against Barrett.

Vice President Pence instead had Harris denying, implausibly, that “we would knock anyone for their faith.” Harris went on to invent a phony history of Lincoln’s response to the Supreme Court vacancy that arose 27 days before the 1864 election. I doubt very much that her process argument against the Barrett confirmation will gain traction, especially as everyone knows that she and her fellow Democrats would be doing exactly the same thing to get a Supreme Court nominee confirmed if the political polarities were reversed.

Pence also memorably hammered Harris for her refusal to answer his question whether she and Biden, if elected, would pursue the Left’s plan to add new seats to the Supreme Court. Given Biden’s own evasions, Harris had to do the same.

I don’t discount the possibility that Biden and Harris would reverse course on Court-packing if elected. But they have forfeited the ability to claim that an election victory would mean that the American people have given them a mandate to pack the Court, and they have thereby immensely raised the political costs of trying to do so. And, given their prominent evasions and the fact that (as Harris observed) “[o]ver four million people have voted” already, it’s too late for them to try to undo the damage.