The future of the court, now that Republicans are poised to cement a six-justice conservative majority, is a hugely important topic. Republicans stole one seat when they refused to let President Barack Obama fill a vacancy created nine months before the 2016 election. Now they are poised to steal another, rushing through President Trump’s nominee with Election Day less than a month away.
If Democrats, in response, are entertaining the radical idea of expanding the size of the court, it’s hard to blame them; Republicans have stocked the court with one and soon two justices whose seats they were not entitled to fill. This is slow-motion court-packing in plain sight.
Pressing Biden on this issue is entirely legitimate. “You’ll know my opinion on court-packing when the election is over,” as he said Thursday, is not an acceptable answer. It’s more than fair to ding Biden for this evasiveness, even if it’s understandable why he would want to.
Answering is lose-lose for Biden. Saying yes to expanding the court would give Republicans ammunition they sorely need. Saying no would inflame the Democratic base, although it likely better reflects Biden’s instincts. Last year, he disclaimed any interest in such a change. “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” he said.
Now, with Republicans rushing through a replacement for the late Ruth Bader Ginsburg, dodging the court-packing question may be the smartest approach.
Especially since the chances of it actually happening are low. Democrats would have to win the Senate majority, convince enough members to eliminate the 60-vote filibuster threshold for passing legislation, then come up with at least 50 votes (plus a Democratic vice president) to expand the size of the court. That’s not going to be an easy task.
In any event, Trump and his fellow Republicans have no standing — zero — to complain about this prospect. The hypocrisy would be laughable if it weren’t so breathtaking. Their unprecedented abuse of raw power brought us to this point. If they weren’t ramming through the Amy Coney Barrett nomination even as votes in the general election are already being cast, the notion of court-packing would not be seriously on the table.
Spare me the pieties about the sanctity of the Constitution, which, by the way, says nothing about the size of the court. “If you cherish the Supreme Court and the separation of powers, you need to reject the Biden-Harris ticket come November 3rd, and we’ll keep the nine-seat Supreme Court,” Vice President Pence said at the debate with Sen. Kamala D. Harris (D-Calif.) on Wednesday night.
A president who disdains rulings by “Obama judges” and calls on his attorney general to prosecute his predecessor and his current opponent does not get to talk about separation of powers or cherishing the court.
A presidential ticket that cannot bring itself to answer the simple question of whether it would respect the election results and engage in a peaceful transfer of power does not get to accuse the other side of seeking to undermine the rule of law. “The American people deserve a straight answer,” Pence lectured Harris. Okay, how about after a straight answer on the election?
And a party that has repeatedly demonstrated its willingness to exercise maximum political muscle doesn’t have much credibility when it warns that the other side might — might — do the same if it wins the presidency and the Senate majority. Republicans’ anticipatory lamentations over the potential demise of the filibuster ring awfully hollow.
Yes, it was a Democrat, then-Majority Leader Harry M. Reid of Nevada, who first exercised the nuclear option to eliminate the filibuster for lower court judges, a lamentable move. But this approach was first raised by Republicans, and they had been poised to deploy it. Republicans did not hesitate to do away with the filibuster for Supreme Court justices when it was necessary to confirm Justice Neil M. Gorsuch.
If Democrats retake the Senate majority and consider doing away with the filibuster for legislation — well, I’ve been reluctant to endorse that step in the past, but you know who hasn’t? The president.
“The very outdated filibuster rule must go,” he tweeted in July 2017, as the Senate talked about repealing the Affordable Care Act. Again, in December 2018, frustrated over being unable to secure funding for his border wall, Trump tweeted at Majority Leader Mitch McConnell, “Mitch, use the Nuclear Option and get it done!”
Now, all of a sudden, the notion of doing away with the filibuster is somehow extreme. “They are going to end the filibuster and they’re going to do things that you wouldn’t have thought,” Trump warned of Democrats in an interview Thursday night with Fox News’s Sean Hannity.
Court-packing is a red herring. Trump is a clear and present danger.