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Joe Biden Needs To Answer Questions About Packing The Supreme Court


During the presidential debate tonight, former Vice President Joe Biden might actually have to answer a question or two about the Supreme Court—specifically, about whether he supports plans to pack the court if he wins the White House and Democrats regain a majority in the Senate in November. He might even have to answer questions about ending the filibuster and abolishing the Electoral College.

After all, these are no longer fringe positions of the radical left but serious proposals being debated within the Democratic Party. Not only are such questions appropriate, but voters deserve to know what the Democratic Party’s candidate for president thinks about them and whether he plans to support them once in office.

Biden has in the past expressed opposition to expanding the Supreme Court, but now he’s reluctant to say what he thinks even as the idea is going mainstream within his own party. Over the weekend, Biden refused to answer a direct question about packing the court, saying that whatever answer he gave would become a “big issue” and distract from “the issue before us,” which presumably is Biden’s talking point about how Trump has botched the coronavirus response.

He’s right that his answer would be a big issue—because packing the court is a big issue and what Biden thinks about it is eminently newsworthy. It’s exactly the sort of question for which voters deserve an answer before Election Day. Whether Biden thinks it distracts from his coronavirus talking point is irrelevant.

Yet Biden has made a habit of dodging this particular question. He was asked it last week during an interview with a Wisconsin television station, and even admitted it was a “legitimate question” before refusing to give an answer, saying it would “shift all the focus.”

Well, yes, sometimes the focus shifts during a presidential campaign in unexpected ways—say, the death of a Supreme Court justice and an effort by the party controlling the White House and Senate to nominate and fill the seat before an election.

Maybe Biden doesn’t want to answer because there’s no way to answer that doesn’t present problems for him. If he reiterates his past opposition to packing the court, he alienates and angers elements within his own party that are agitating for it. If he reverses his past position and says he now supports the scheme, he gives credence to the criticism that he can be—and often is—bullied by the left wing of his party into changing his positions on a whole host of issues. In this case,  he’d be agreeing to a radical plan to turn the Supreme Court into a partisan institution, inviting every successive administration to add more justices in an ever-expanding, and thoroughly politicized court.

What Does Harris Think? She Won’t Say, Either

It’s been much the same with his running mate, Sen. Kamala Harris, who last year said she was “open” to packing the court. In an awkward video address on Monday, Harris denounced President Trump and the Republican Party for “cutting out” the American people from the process of nominating and confirming a Supreme Court justice. She inveighed against Trump’s nominee, Amy Coney Barrett, falsely claiming that seating Barrett on the court would mean the end of the Affordable Care Act and the overturning of Roe v. Wade.

Harris prattled on for 20 minutes or so, but never mentioned her party’s scheme to pack the court. The closest she came was this cryptic line: “We will not let the infection that President Trump has injected into the presidency and into Congress—that has paralyzed our politics and pitted Americans against each other—spread to the United States Supreme Court.”

What does that mean? Does it mean that if Biden and Harris win, and Democrats take control of the Senate, they plan to obviate the confirmation of Barrett by adding more seats to the Court? Does it mean they’ll consider the court illegitimate if Barrett is confirmed?

These are fair questions, given her statement. But the second Harris finished with her prepared remarks she bolted the stage, and the media in the room, deferential as always to the Democratic ticket, didn’t even shout a question in Harris’ direction as she left.

It’s not going to be as easy to wave the court-packing question away on the debate stage. If Fox News’ Chris Wallace doesn’t bring it up in his role as moderator, Trump might—and he might well demand a clear answer from Biden. In that live, one-on-one format, Biden’s excuse that the issue is a distraction isn’t going to work.

The fact is, at this point Biden’s position on packing the court isn’t a distraction, but his refusal to be honest with the American people on this question most certainly is.