February 24, 2021

3 reasons why Biden is misreading the politics of court packing

From the party that brought you #DefundThePolice, enter the latest political gift to Republicans: #PackTheCourt. The proposal to expand the number of Supreme Court justices is gaining traction among Democrats as a proportional response if Republicans ram through Trump’s nominee at the eleventh hour. Last week, Sen. Ed MarkeyEdward (Ed) John MarkeyDemocrats shoot down talk of expanding Supreme Court Schumer: ‘Nothing is off the table’ if GOP moves forward with Ginsburg replacement Democrats see fundraising spike following Ginsburg death MORE (D-Mass.) came out with the most unequivocal endorsement of the move. If Republicans proceed with Trump’s SCOTUS nominee, he tweeted, “we must …expand the Supreme Court” the next time that Democrats hold power.  

Markey is in good company. During the recent presidential primaries, several top Democrats – including current vice presidential nominee Kamala HarrisKamala HarrisHarris faces pivotal moment with Supreme Court battle Nearly 40 Democratic senators call for climate change questions in debates Joe Biden has long forgotten North Carolina: Today’s visit is too late MORE (Calif.), as well as Sens. Cory BookerCory Anthony BookerBipartisan praise pours in after Ginsburg’s death DHS opens probe into allegations at Georgia ICE facility Democratic lawmakers call for an investigation into allegations of medical neglect at Georgia ICE facility MORE (N.J.), Amy KlobucharAmy KlobucharSocial media platforms put muscle into National Voter Registration Day Battle lines drawn on precedent in Supreme Court fight Sunday shows – Ruth Bader Ginsburg’s death dominates MORE (Minn.) and Elizabeth WarrenElizabeth WarrenDimon: Wealth tax ‘almost impossible to do’ CNN’s Don Lemon: ‘Blow up the entire system’ remark taken out of context Democrats shoot down talk of expanding Supreme Court MORE (Mass.) –expressed openness to court packing. Yet it was Democratic presidential nominee Joe BidenJoe BidenBiden on Trump’s refusal to commit to peaceful transfer of power: ‘What country are we in?’ Democratic groups using Bloomberg money to launch M in Spanish language ads in Florida Harris faces pivotal moment with Supreme Court battle MORE who raised eyebrows this week when he refused to deny that he’d support court packing. “It’s a legitimate question,” Biden said. “But let me tell you why I’m not going to answer that question: because it will shift all the focus.”

Biden is an institutionalist. If he wins the White House, his record suggests he’d be highly unlikely to support court packing if given the opportunity. Biden knows it would inflict serious damage on the court’s legitimacy and invite Republicans to launch a counter-strike the next time they took power. Biden’s refusal to rule out court packing has nothing to do with his own convictions and everything to do with politics. That’s hardly atypical for Washington. Yet right now, Biden is badly misreading the politics. Here are three reasons why.

1. Playing into Trump’s hand. Biden’s refusal to rule out court packing is playing into Trump’s central narrative about him: that, if elected, he would be held captive to the political left. Trump’s argument is that a Biden administration would usher in a new era of democratic socialist rule driven by policies that are anti-business, are hostile to religion, and undercut “traditional” American values. Several weeks ago, Biden made light of that possibility. “You know me. You know my heart… Ask yourself if I look like a radical socialist.”  

As one commentator has observed, however, the concern isn’t that Biden is a closet radical. It’s that he will be dragged, wittingly or unwittingly, by left-wing agenda-setters who aren’t content with policy defaults that mirror those of the Obama era. Most Democratic voters are looking for moderation, which is why they settled on Biden as their nominee. By not categorically ruling out court packing, Biden only fuels suspicions that he’d be unable to stand up to the left flank of the Democratic Party if given the keys to the Oval Office.

2. Undermining the Democrats’ case. Democrats have spent much of the last three and half years complaining that Trump has shattered democratic norms. From abusing power to obstructing justice, Trump has left few norms in the White House undisturbed. At the same time, Trump’s authoritarian tendencies have led him to make sweeping claims about his powers. Trump has stated that the Constitution grants him “the right to do whatever [he] want[s].” He insists that Article II gives the “president powers that you wouldn’t believe.” 

Yet now it’s Democrats implying that nothing is sacred. Senate Minority Leader Chuck SchumerChuck SchumerCruz blocks amended resolution honoring Ginsburg over language about her dying wish Senate Democrats introduce legislation to probe politicization of pandemic response Schumer interrupted during live briefing by heckler: ‘Stop lying to the people’ MORE (D-N.Y.) vowed that if Trump’s SCOTUS nominee is voted on, “nothing is off the table for next year.” Sen. Richard Blumenthal (D-Conn.), ostensibly reading from the same memo, tweeted, “If Republicans recklessly & reprehensibly force a SCOTUS vote before the election—nothing is off the table.” This isn’t to imply an equivalency with Trump’s record. But by failing to resist an “anything-goes” politics over court packing, Biden is in a weaker position to attack Trump for challenging democratic norms. 

3. Reinforcing an Unflattering Image. Biden’s refusal to answer the court packing question reinforces a reputation for waffling. A frequent critique against Biden is that he doesn’t take firm policy positions. Where Biden stands on crucial issues, for example, such as U.S.-China trade, immigration, health care and the like are, to a large extent, big question marks. Now, Biden is asked a straightforward question on court packing –which should have a straightforward answer – and he declines to answer. That’s neither good leadership nor good politics. 

With less than two months before the election, Biden needs to get specific. That doesn’t mean taking unnecessary risks or deliberately alienating either the moderate or progressive wings of his party. Yet trying to constantly split the difference, as on court packing, isn’t a recipe for success. The remainder of the 2020 elections will be bruising. Biden will be forced to answer enough tough questions as it is. Whether the Supreme Court should have nine justices – as it has since the Ulysses S. Grant administration – doesn’t have to be one of them. 

Thomas Gift is director of the UCL Centre on US Politics and a visiting fellow at the London School of Economics US Centre. 

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