Well, we finally have Joe Biden’s response to the demand for an answer to his plans for Court-packing, the single most radical and destructive proposal on the table in this election. It’s . . . an obvious non-answer.
As you will recall from the primaries, Biden thought that Court-packing — expanding the size of the Supreme Court solely in order to add judges who will produce the outcomes he wants — was a bad idea likely to set off endless rounds of partisan retaliation. This is in line with his past remarks in 1987 and 2005 describing Court-packing as a dangerous, corrupt power grab. Even Bernie Sanders agreed with Biden on this. Court-packing also polls terribly with the general public; a late-September ABC News/Washington Post poll found voters opposed 54–32, an early October Washington Examiner/YouGov poll found voters opposed 47–34 (with independents opposed 45–32), and the latest New York Times/Siena poll found voters opposed 58–31. The latter poll found Court-packing opposed by 65 percent of independents, 28 percent of Democrats, 48 percent of Hispanics, 32 percent of black voters, 71 percent of men, and a majority in every region of the country. Multiple Democrats in tight Senate races have run away from Court-packing:
Michigan incumbent senator Gary Peters (in a tight race against GOP challenger John James) is one, and he’s joined by a handful of challengers to Republican incumbents: Mark Kelly (facing Martha McSally in Arizona), Jon Ossoff (facing David Perdue in Georgia), Theresa Greenfield (facing Joni Ernst in Iowa), Sara Gideon (facing Susan Collins in Maine), and Cal Cunningham (facing Thom Tillis in North Carolina).
But the idea was popular with the radical elements of the Democrats’ progressive base, rocketing Pete Buttigieg to national attention when he proposed it, with Kamala Harris, Elizabeth Warren, and several other Democratic presidential contenders embracing it. It is beloved by the progressives who dominate the commentariat. The issue quickly became an acid test of Biden’s willingness and ability to stand up to anti-constitutional radicals within his own party, including his own running mate. Biden has buckled under the strain. He and Harris both entirely avoided discussion of the judiciary in their convention speeches and both flatly refused to answer questions on their plans during the debates. Biden told Chris Wallace, “Whatever position I take, that will become the issue . . . . I’m not gonna answer the question.” At one point, Biden even told a questioner that voters “don’t deserve” an answer on his position.
Even in the cosseted world of the Biden campaign — no follow-up from Wallace, no questions on Court-packing at Biden’s NBC town hall, no public appearances by Biden for days on end — this was unsustainable, so in a CBS News interview released this morning, Biden promised . . . a bipartisan commission to kick the can down the road for the first six months of his term. The commission would “come back to me with recommendations as to how to reform the court system . . . . It’s not about Court-packing. . . . There’s a number of alternatives that are — go well beyond packing. . . . It is a live ball.”
This is a transparent dodge. Joe Biden spent 36 years in the U.S. Senate, and eight as the vice president, and this is his third presidential campaign. He was the top Democrat on the Senate Judiciary Committee for 16 years, chairing it for six. He has given speeches about the dangers of Court-packing. Unless Biden’s mental state has declined worse than we think, there is not a chance in the world that he requires a commission to tell him what to think on this issue. The reality is that Biden is terrified of his radical base, and lacks the guts to take a stand in public. That bodes poorly for his presidency across the board.
What does this mean for Court-packing? Clearly, one reason Biden has not wanted to commit himself on the issue until after the election is the risk that he might win the election but face a Republican majority still controlling the Senate, which might take a more hostile approach to his judicial nominations if he came out in favor of packing the Court. As Ramesh Ponnuru notes, delaying the issue for six months would also make it harder to get Court-packing through the Senate for two reasons: Because it will be further into Biden’s term and closer to the Senate midterms, and because the Supreme Court will have finished its first term with Amy Coney Barrett on the bench by then, and it is highly likely by that point that alarmist Democratic predictions of the Court striking down Obamacare will have been proven false. I would add a third: A proposal this radical is more likely to trigger a major backlash if the candidate did not campaign on it. That is what happened to Franklin D. Roosevelt in 1937, having declined to address agitation from his party’s progressives to run on Court-packing in 1936. Michael Brendan Dougherty is optimistic that this signals a retreat, given that bipartisan commissions rarely result in the proposal of radical solutions that then get enacted into law. After all, it was a Democrat-controlled Senate Judiciary Committee that issued the report in 1937 that branded FDR’s Court-packing plan as a threat so grave that it should “never again be presented to the free representatives of the free people of America.”
On the other hand, if Harris takes over for Biden, all bets are off. The best way for conservatives to stop Court-packing, even if the Democrats take the White House, is to hold the Senate — and begin building public support for a permanent constitutional safeguard.