Election 2020

Biden: 'You'll Know My Opinion on Court-Packing When the Election Is Over'

AP Photo/Julio Cortez

On Thursday, Democratic nominee Joe Biden explicitly said, “You’ll know my opinion on Court-packing when the election is over.” You have to elect him president to find out what kind of president he will be.

Democrats have openly discussed adding new justices to the Supreme Court if the Senate confirms President Donald Trump’s nominee, Amy Coney Barrett, and if Democrats retake the House, the Senate, and the White House in November. Journalists, President Donald Trump, and Vice President Mike Pence have pressed Biden and his running mate, Sen. Kamala Harris (D-Calif.) to state their positions on packing the Court.

Both have refused to answer.

Yet neither had been quite as brazen as Biden proved himself on Thursday.

“You’ll know my opinion on court-packing when the election is over,” the Democrat said. Then he repeated his rationale for dodging the question: “Now look, I know it’s a great question and I don’t blame you for asking. But you know the moment I answer that question, the headline in every one of your papers will be about that, other than focusing on what’s happening now.”

Yet by continually dodging the question and by insisting that it is a distraction when other Democrats are taking it seriously, Biden is only drawing more attention to the issue.

This shiftiness has also transformed the essential question on Court-packing. Back when Democrats first discussed the issue, the question was “Does Biden support Court-packing?” Now the essential question is, “Why does Biden want to keep the possibility of Court-packing open?”

Biden should consider Court-packing utterly unpalatable. This move represents a way to change the rules of the game, and it would open a Pandora’s Box. If Biden adds three seats to the Supreme Court and nominates three new justices, what prevents a future Republican president and a Republican Congress from doing the same?

Trump’s push on originalism represents a way to stop activist judges from reinterpreting the Constitution to write left-wing policy into the document without Congress passing a law or a constitutional amendment. Now that Trump’s originalism is remaking the federal judiciary, Biden wants to keep Court-packing on the table in order to return to the leftist activist judiciary of the pre-Trump decades.

Biden isn’t responding to Trump’s politicizing of the Court — he’s signaling that he is willing to remake a fundamental American institution just to win a political game. That’s dangerous, and it’s a strong reason for Americans to reject him in November.

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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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