“It depends on how much they rush this,” he said of Republicans. He said he is open to considering it if they vote on her confirmation before Election Day. (Which they are on track to do.)
Let’s review some of the tricky political balances that Biden is navigating as he decides whether to say he supports court-packing in the coming weeks.
If he does say he supports court-packing, it could play into Republican attacks that the Democratic Party is extreme: Biden has been consciously trying to stay one step back from Trump’s regular swings that the former vice president is beholden to the liberal wing of the Democratic Party. “I beat the socialist,” Biden likes to say of his primary win over Sen. Bernie Sanders (I-Vt.).
Trump has yet to land a major punch on this, as evidenced by Biden leading in swing states that Trump won four years ago.
But could it be easier to tie a Biden who supports packing the Supreme Court — something that has not been seriously attempted in nearly a century — to the liberal wing of the Democratic Party? As Trump’s Twitter feed shows, he’s got a close eye on what Biden says about this.
It’s not just Biden who could become more politically vulnerable by supporting this. In Barrett’s Senate confirmation hearings this week, Republican after Republican tried to accuse the Democratic Party of wanting to pack the court even though no Democrat on the committee actually talked about it.
If Biden suddenly supported this, it would force Democratic challengers trying to unseat these senators in swing or red states to go on the record about court expansion and risk opening themselves up to Republican attacks or being at odds with their party’s nominee.
But there is a force on the left that wants Democrats to fight back as hard as possible after Republicans put so many conservatives on the court these last three years: After Trump nominated Barrett to fill the seat vacated by the late liberal icon Ruth Bader Ginsburg, groups on the left put extreme pressure on Senate Democrats to resist Barrett’s nomination any way they could. There was even some talk of just not showing up for her hearing, something Senate Democratic leaders quickly dismissed.
At the end of this week’s confirmation hearings, a liberal group called for the removal of the top Democrat on the committee, Sen. Dianne Feinstein (D-Calif.), for praising Republicans for how smoothly it went and giving Senate Judiciary Chairman Lindsey O. Graham (R-S.C.) a hug.
Expanding the court specifically gained traction during this year’s Democratic presidential primaries. As many as 11 candidates were at least open to it, spanning the political spectrum from Sen. Elizabeth Warren (Mass.) to former South Bend, Ind., mayor Pete Buttigieg.
Packing the court has been historically controversial: Biden had previously opposed it, warning that doing so could come back to haunt Democrats when they are out of power.
History shows that attempting to do this comes at a high political cost. President Franklin D. Roosevelt tried in the 1930s to get Congress to expand the court, frustrated by how it was knocking down pieces of his popular New Deal legislation. Congress blocked him, and his efforts remain part of his legacy nearly a century later.
But Democrats are within reach of being able to change the court’s super-conservative majority for a generation by adding justices: It would help them push back against potential legal challenges to abortion, LGBT rights, voting rights, climate change regulations — nearly everything they hold dear. And it could provide a buffer for expected GOP challenges to any new laws that a Democratic governing majority passes. (Case in point: The Supreme Court is scheduled to hear yet another GOP challenge to Obamacare this November, a decade after the law was passed.)
Barrett was tight-lipped about almost every issue in her confirmation hearings this week, but she did little to dissuade both sides’ belief that she would be a reliable conservative vote who would be open to challenging long-held rulings such as legalized abortion.
“I think there’s great reason to be concerned,” Biden said Tuesday of what her confirmation would mean. Her performance may have brought Democrats closer together on the need to act.
But Biden doesn’t yet know if he will even have the votes to expand the court: A president needs Congress to change the law to add justices. And it’s not clear whether Democrats will have control of Congress next year; they are in a close battle for the Senate majority. So why go out of his way now to say he will support this if he might not even be able to get Congress on board to get it done? Certainly, a Republican Senate isn’t going to help him out.
That being said, taking a position in favor of court-packing gets safer to do the closer it gets to Election Day. Biden can make a more educated guess on whether he will have a Democratic Senate. (Democrats are fully expected to keep their House majority.) The battle for the Senate majority is still tight, but Democrats are leading in polls in key states.
(Although even a Democratic-majority Senate might not be enough, given some Senate Democrats’ opposition to measures such as ending the filibuster.)
Biden could split the difference and say he doesn’t support court-packing, but he does support other Supreme Court and governing reforms: Notably term limits for justices, which he hinted Thursday night that he is considering. Democrats could try to strengthen their congressional majority by making D.C. and/or Puerto Rico a state.