Biden’s best strategy for the court-packing questions: Just say no


Republicans have found what they believe is a scoring punch against Joe Biden in the home stretch of the 2020 Presidential campaign, and it is a lone question: Do you plan to pack the Supreme Court if elected?

Biden’s refusal to answer on the principle that his answer, either way, would become “a distraction” from other issues rings hollow. It very much is an issue. If people care, they ought to get some kind of answer.

But as the people demonstrate time and again, while they want an answer, they don’t necessarily require an honest answer.

I realized the height of my own political pessimism when I decided that, were I advising the Democratic national ticket, I’d give them a three-word piece of advice on this question:

Just say no.

Tell people you don’t believe in packing the court. Tell them you have no desire to change the structure of an institution that has served the country well. If reporters follow up and ask, “Does that mean you won’t pack the court,” tell them yes, that’s exactly what it means.

Even if it’s not what it means.

First, the question right now is moot. As long as Republicans hold the senate, it can’t happen.

Second, even if Democrats were to win the senate, it would be tough to accomplish.

Third, if it does get done, it would be a majority in congress that would have to do the heavy lifting, not the president.

But more than that, there would seem to be few consequences of an about-face once in power. Obviously, from the senate confirmation process now under way, there was one set of rules when a party didn’t hold the power structure (i.e., a Republican president and senate), but another set of rules when it did.

If, in Washington, a principle only lasts as long as the political status quo, then the only answer for Biden to give reporters and others is, “No, I won’t pack the court.” Because it couldn’t happen now. Later, of course, the answer could change depending on the circumstances. This kind of situational ethics, of course, is detestable. But it’s what is being sold every day by politicians. Biden doesn’t want to play that game. But he’s in the game. He, more than likely, is a one-and-done. His chances of seeking a second term are small.

To tell people he wouldn’t pack the court when his party, in fact, would be clamoring for it, would be a calculating move. But he’s running against a man who has broken every norm — and more than likely a few laws — in using the backdrops of the presidency for his own campaign. This is a political card Biden should have little qualm about playing, especially considering that the question is moot unless his party sweeps to power in the congress next month.

Regardless, an answer is required. So why not take a weapon away from the opposition?

(There are, by the way, real and substantive reasons to leave the composition of the Supreme Court alone, not the least of which is that packing the court by one side would undoubtedly be met by packing by the other side, to the point that whoever wins power would immediately stack the court in its favor, and the institution would lose credibility with the American people. If anyone cares about credibility anymore.)

There’s also the question of how to treat the current court nominee, Amy Coney Barrett. At this point, the only thing standing in the way of her nomination will be the potential concerns of Republican senators. For instance, if some were to get cold feet because of the stances of some associations she has belonged to, such as one that doesn’t approve of in vitro fertilization, which has helped tens of thousands of American couples to conceive.

At this point, Democrats would seem to be politically better served to remember that regardless of ideological bent, justices have a way of surprising people – even those who appointed them – once they are sitting under the weight of the highest bench in the land. Even torching the process seems silly. Attack for holding conformation hearings in person during a pandemic, or attack their timing. But to call the whole thing a “sham,” as Minnesota senator and former presidential candidate Amy Klobuchar did on Monday, just sounds silly. The process is what the constitution gave us. The only adulterant is not needing a super-majority to confirm a justice for the Supreme Court, but that came about as a response to Democrats doing away for the requirement for federal court appointees.

All the complaining in the world isn’t going to stop this confirmation. A measure of respect, however, might well be remembered once Barrett is seated.

Democrats have made one political error after another in trying to weaken this president. Impeachment never had a chance. It was a waste of time. It was a distraction, and wound up being a deadly distraction, and one that took some political high ground from their party when it came to criticizing the early coronavirus response. They have fought battles without the right weapons, battles they should have known going in that they couldn’t win. They know they can’t win this Supreme Court battle. They need to look beyond it, to see what best use they can make of the defeat.

Either way, their immediate response is of little consequence. Regardless of what is said now, Democrats will pack the court if they feel they have to. They will use the principle of wanting to make the court match the country demographically, etc. And more than that, they’ll do it with the same three-word response Republicans are using now, confirming a justice on the eve of an election when they were ethically opposed to such a thing four years ago: “Things have changed.”

NOTE: Campaigning in Ohio on Monday, Biden told a Cincinnati TV station: “I’m not a fan of court packing, but I don’t want to get off on that whole issue. I want to keep focused. … The president would love nothing better than to fight about whether I would in fact pack the court or not pack the court.”