Joe Biden and Kamala Harris have refused to answer whether their administration will support the idea of adding seats to the Supreme Court. What is commonly referred to as court-packing has been threatened by leading Democrats, like Minority Leader Chuck Schumer, with his “nothing is off the table” comments. Many left-wing commentators are openly calling for packing the court in light of the nomination of Amy Coney Barrett to the Court.
Biden has gone so far as to say voters do not deserve an answer to the question before the election. This attitude has become problematic, as even corporate media members have begun to ask him about it. Vice President Mike Pence did a great job of pointing out the campaign’s refusal to answer during his debate with Harris.
This morning, a strange new talking point started emerging from Democrats and their allies in the media. They began to assert that it was Republicans who had engaged in court-packing. One of the most insane takes came from former Vermont Governor Howard Dean:
You have already packed the Court with incompetent judges and corrupt appointment processes. We will simply UNpack it and undo the corruption the Federalist Society has brought to the appointment process. https://t.co/YM6bq6SPNb
— Howard Dean (@GovHowardDean) October 11, 2020
Then, Senator Dick Durbin (D-Ill.) echoed this on “Meet the Press” with Chuck Todd:
Filling vacancies = packing the court? Dems are abandoning the moral high ground at exactly the wrong time. And…why???? https://t.co/M2dSzhX4yD
— Matt Lewis (@mattklewis) October 11, 2020
Even the nominee repeated it:
Biden is again asked why voters don’t deserve to know his views on court packing. He responds: “The only court packing going on right now is going on with Republicans packing the court right now … I’m going to stay focused on it so we don’t take our eyes off the ball here." pic.twitter.com/E9H5rIXMX2
— Jennifer Epstein (@jeneps) October 10, 2020
The appointment process has not changed. The Federalist Society has assisted with recommending and vetting potential candidates, but the president appoints, while the Senate advises and consents. The only significant change was one implemented by former Majority Leader Harry Reid. He eliminated the 60-vote threshold to confirm presidential appointments, also referred to as the filibuster.
This change has allowed President Trump to confirm a historic number of judges throughout the federal system together with Majority Leader Mitch McConnell. Republicans have also had the opportunity to fill three Supreme Court seats in a single term. The Democrats are very upset that the third nominee will likely be confirmed before the election and are pulling out all the stops to disrupt the process.
First, they said the seat should not be filled in an election year, citing McConnell not putting Barack Obama’s nominee Merrick Garland through the Senate. However, historically, 29 of the 45 U.S. presidents have nominated a Supreme Court justice in an election year. When the president and Senate were from the same party, the nominee was approved 17 of 19 times. When they were not, only two of ten were confirmed.
Biden took it further and accused Republicans of doing something unconstitutional in nominating and proceeding to confirm Barrett. This rhetoric even made Jake Tapper ask a Biden surrogate what he was talking about:
Wow: “‘Constitutional’ doesn’t mean ‘I like it or I don’t like it’…There’s nothing unconstitutional about what the U.S. Senate is doing.”@jaketapper just shredded a pundit arguing that Trump’s nomination of #AmyConeyBarrett is somehow unconstitutional. pic.twitter.com/4ohe40f0p8
— John Cooper (@thejcoop) October 11, 2020
The other little bit of spin coming out of hundreds of accounts on Twitter is that adding justices to the Supreme Court is not court-packing. The new term is “rebalancing the Court.” Adding justices should be referred to as politicizing the Court. One of the primary reasons Supreme Court vacancies have become such battles is the tendency for the Left to push through the Court things they can’t get through Congress—gay marriage and trans rights under the Civil Rights Act of 1964, to name but two.
The job of the Supreme Court is to interpret the law and the Constitution as written, not to twist it to say what they wish was written. The right-wing generally wants to see justices appointed who hold this view and appear to rule that way. We fully expect sometimes we will win, and sometimes we will lose. It is up to Congress to legislate because we can hold them accountable. Justice Antonin Scalia articulated this perfectly in his dissent in Obergefell v. Hodges:
So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
The left counts on that unelected committee of nine. That is why if they win the presidency and the Senate, it may become 13 black-robed lawyers. Court-packing is something a majority of Americans are not in favor of. There have been nine justices since 1869.
Hate to tell the Biden campaign, but if you’ve gone a bridge too far for Jake Tapper, the talking points aren’t working. To make it clear in language even Joe can understand, come on, man, answer the question.