Support The Bulwark and subscribe today.
  Join Now

Biden Must Stiff-Arm the Court-Packers

It’s politically savvy—and smart on the substance of judicial reform—for Biden to delay giving a definitive answer.
October 16, 2020
Biden Must Stiff-Arm the Court-Packers
Democratic presidential nominee Joe Biden participates in a Town Hall format meeting with ABC News Chief Anchor George Stephanopoulos at the National Constitution Center October 15, 2020 in Philadelphia, Pennsylvania. The second presidential debate was originally scheduled for this day but was cancelled after President Donald Trump refused to participate in a 'virtual' debate after he tested positive for the coronavirus and was hospitalized for three days. (Photo by Chip Somodevilla/Getty Images)

Ever since his resurrection in South Carolina, Joe Biden and his campaign have done almost everything right.

Unerringly, he struck a balance between his party’s contending forces, making important but measured concessions to consolidate liberal support. With two-plus weeks to go, he is hitting the swing states and speaking to the voters he most needs: persuadable blue-collar workers; senior citizens of all races; and suburbanites ready to be weaned from Trump’s GOP.

He is avoiding hot-button issues while focusing on issues that affect the daily lives of average Americans. He’s campaigning as a unifier in a country weary of anger and division. By all available evidence, he is headed for victory.

By contrast, Trump’s campaign has become a rolling fiasco, demonstrating that underappreciated political maxim: When you’re a one-trick politician with a personality disorder, your luck runs out.

He screwed up one debate, backed out of the next, blew up stimulus negotiations, contracted COVID-19, turned the White House into a coronavirus hotspot, and commenced a national tour of potential superspreader events. Little wonder that there is record early voting in Democratic areas: Trump is, indeed, a turnout machine.

Biden has a roughly 10 percent lead in national polls. The latest surveys have him leading in the six universally acknowledged battleground states: Michigan, Wisconsin, Pennsylvania, Florida, North Carolina, and Arizona.

New polls show him weaning white and independent voters away from Trump, and leading among those who voted third-party 2016. A majority of Americans blame Trump for contracting COVID: by the power of his own example, Trump has placed himself beyond empathy.

Now, however, the imminent confirmation of Amy Coney Barrett as a Supreme Court justice presents Biden with a distinctly unwelcome challenge—a pincer movement between Trump and the Democratic party’s more febrile progressives. Some on the left, faced with the grim prospect of winning sans Bernie, have hit on their last chance of losing: urging Biden to embrace a decidedly unpopular and culturally inflammatory proposal to expand the Supreme Court.

Just ask key Sanders advisor Nina Turner who—having helped mastermind his decisive defeats by Biden and the far-less-beloved Hillary Clinton—seems to have learned absolutely nothing. “The majority of Berniecrats will most likely vote for Vice President Joe Biden,” she graciously allowed. “That doesn’t mean that they are not going to raise hell all the way.”

What would make her happy? Only this: “Biden should make it clear that he will fight back by expanding the court if he wins.” Similarly, movement progressive Adam Green says that one way Biden “can quickly unify Democrats” is by “promising to expand the court if Republicans do an end run around democracy” through confirming Judge Amy Coney Barrett.

But isn’t the party already united? Before we inaugurate Biden, don’t we need to elect him? Doesn’t that include propitiating swing voters unmoved by ideological passions? Lamentably, such earthbound considerations seem never to penetrate the ethereal self-absorption of the most monomaniacal progressives.

Now they are outraged because Barrett will give right-wing Republicans a 6-3 hammerlock on the Supreme Court-and because, quite predictably, the GOP has offended their sensibilities by exploiting the equally unsurprising death of a justice they revered above all others. So it bears mentioning that we have reached this point because Justice Ginsburg overstayed her long-failing health—urged on by progressive idolaters willfully oblivious to actuarial and political reality, yet who now demand that Biden jeopardize his campaign to redeem their seemingly infinite myopia.

Here Slate writers Dahlia Lithwick and Mark Joseph Stern serve as a melancholy example. Far from chastened, they insist that Biden hasten to commit electoral suicide:

At the first debate . . . Biden refused to say whether he’d expand the Supreme Court if Republicans confirm Barrett, insisting that the issue is a “distraction.” He’s wrong. Broaching the conversation about systemic reform after the election will be too late.

More aptly, they should have said “too late for Biden to lose.” But, quite expressly, Lithwick and Stern don’t care about November: “The court is already lost for a generation. Retaking the White House and the Senate in November will do nothing to solve that problem. Bold and big action on court reform on Day One of a new administration isn’t a fanciful hope. It may be the only lifeline that remains.”

One could write a book on what is wrong with that paragraph. But let’s start here: If Democrats lose the White House and the Senate, how do Lithwick and Stern propose to jam court packing past Trump and McConnell?

Such details matter. Back in 2014—when Barack Obama could have replaced Ginsburg with a liberal justice like his appointees Sonia Sotomayor and Elena Kagan—Lithwick wrote a piece with the exceedingly unfortunate title: “Ruth Bader Ginsburg Is Irreplaceable.”

Just as winning in November doesn’t matter to her now, the potential that the Court would be “lost for a generation” should a conservative replace Ginsburg didn’t faze Lithwick then. All that counted was that Ginsburg not retire.

To that end, Lithwick favorably quoted a piece that argued: “Does anyone really think the justice [Ginsburg] has yet to think through her decision? Isn’t the doomsday scenario of a 6- or 7-justice conservative bloc screamingly obvious to her? Should any of us really counsel Justice Ginsburg on her major life decisions?”

Only if one cares, as Lithwick then did not, about the millions of Americans affected by the composition of the Court. Dismissing the concern that Ginsburg’s death could shift its ideological balance to the right, Lithwick wrote in 2014: “That analysis suffers from exactly the same realpolitik flaw Ginsburg’s critics ascribe to her: that counting to four, or five, is more important than the justice itself.”

Yet in 2020, presented with Ginsburg’s death, Lithwick (joined by Stern) urges Biden to commit political malpractice—because she has at last discovered what eluded her in 2014: “A 6-3 conservative majority . . . would swiftly transform American life and put millions in danger.”

Here Lithwick and Stern descend from the willfully obtuse to the inexcusably irrational:

Because court expansion remains relatively unpopular among the American public, a cautious approach makes sense in this political moment. But in the longer term, it is a recipe for disaster.

But doesn’t the “longer term” depend on who first captures the presidency in “this political moment”? Not to Lithwick and Stern:

Is there a political cost to announcing that Democrats plan to play constitutional hardball, effective immediately, whether it be scaring off moderate voters or emboldening Mitch McConnell to implement these selfsame ideas if he still controls the Senate from January? Sure there is.

Indeed. Yet it never dawns on Lithwick and Stern that the indispensable prerequisite to expanding the court is not only winning the White House, but securing a solid majority of senators potentially amenable to expanding the Court—which, first of all, requires unseating several GOP incumbents in closely contested states.

But where Lithwick and Stern ignore this reality, erstwhile Sanders advisor David Sirota simply repeals it:

The easiest way to talk about whether to expand the court is to cast it as an issue of values and policies that people actually care about. If—as they insist—Democrats are firmly committed to protecting reproductive, voting, labor, health care and civil rights, it shouldn’t be difficult for any Senate candidate to say they will consider all options available to protect them, including expanding the court.

Given how easy he finds this to say, Sirota and his coauthors are mystified that practicing politicians are not quite so blasé:

Democratic Senate challengers in key swing states—Jaime Harrison in South Carolina, Cal Cunningham in North Carolina, Mark Kelly in Arizona, Jon Ossoff in Georgia, Theresa Greenfield in Iowa, Sara Gideon in Maine, and John Hickenlooper in Colorado—have said outright that they oppose adding judges to the court, or attempted to dodge the topic.

Maybe that’s because these candidates actually live in those places, and know what their voters think. South Carolina is an actual state, not a liberal lotusland in Sirota’s state of mind. To govern, Biden must not only win, but refrain from gratuitously saddling would-be Democratic senators with an issue that diminishes their chances.

Blissfully high on progressivism, Sirota nonetheless adjures:

There’s absolutely zero evidence that voters want the Supreme Court stuck at nine justices, even if that means those justices doing wildly unpopular things, like throwing out protections for pre-existing medical conditions.

Of course, the justices have yet to do those “wildly unpopular things”, rendering Sirota’s arguments premature. Nonetheless, he heaps scorn on the candidates who reject his visionary imperatives:

Refusing to make that case—or running away from questions about court expansion—is not just cowardly, it is politically stupid. It forsakes an opportunity to turn a conceptual battle over the Supreme Court into a much more tangible, down-to-earth battle over policies that affect people in their daily lives.

Perhaps these “politically stupid” Democrats are hung up on popular opinion. So we should review recent polls on the subject, and return Sirota to his vital work in the Sanders administration.

In the wake of Ginsburg’s death, a Washington Post/ABC News poll showed that fewer than one-third of respondents support expanding the Court. Similarly, a Washington Examiner/YouGov survey earlier this month showed a 47 to 34 percent margin among registered voters against adding new justices.

Equally instructive is a June 2019 survey by the polling firm PSB, taken to gauge relative support for proposals to reform the Supreme Court: 40 percent of the respondents preferred setting a term limit of 18 years for justices; only 15 percent favored adding new members. At the very least, this suggests that Biden should not precipitously catapult a court-packing proposal to the forefront of his campaign.

Biden handily beat Sanders and the field for the Democratic party’s nomination by judiciously feeling the popular pulse. That’s why he refused to unreservedly embrace Medicare For All, the Green New Deal, decriminalizing the border, or defunding the police.

Instead he frustrated Trump by crafting progressive but popular proposals designed to maximize his chances of winning. And that’s why he’s doing his damnedest to finesse the issue of court-packing for the remaining two weeks and change—even as the GOP is desperate to corner him into succumbing to the suicidal siren song of the left.

He hasn’t—so far. Pressed by the media, he has allowed that “I’m not a fan of court-packing,” but refused to take a definitive position.

Instead he countered that Trump “would love nothing better than to fight about whether or not I would in fact pack the court.” The real court packing, Biden emphasized, is Trump’s effort to steamroll Barrett’s confirmation so close to the election.

But the issue won’t rest: Trump, some progressives, and the media won’t let it. At last night’s town hall, pressed further, Biden allowed that Barrett’s actual confirmation would influence his position on expanding the court—and that voters “have a right to know where I stand before they vote.”

Politically, Biden faces an unappetizing choice. If he endorses court packing, he will inflame a heated cultural and political issue to Trump’s advantage, and potentially harm several Democratic senatorial candidates. If he does not, he will alienate some progressives, and prematurely give up bargaining power on court reform should he become president—even before he knows what he can get through the Senate, and what his top legislative priorities must be in this badly wounded country. The only party that should want him to make such a choice before the election is the GOP.

Given that, Biden should not take a definitive stance that this measure, and this alone, is the way to approach Supreme Court reform. He needs to run on the issues of his choosing, not Trump’s, or embrace at his peril the latest enthusiasm of progressives whose political wisdom is so uncannily awful.

In short, Biden’s description of “where I stand” need not be a definitive up or down on expanding the court.

Nor should it be. Politics aside, the constitutional scholar Laurence Tribe told me, it would be injudicious to oversimplify the crucial and multifaceted issue of reforming the Court in the transient heat of this campaign. The ultimate answer, Tribe continues, depends on the legal and political context facing Biden should he become president—whereupon various proposals, including term limits, may deserve more studied consideration.

That’s when he should choose and, until elected, what he should say. There are times, whether in politics or policy, when temporizing equals wisdom. This is one—Joe Biden has a country to save.

Richard North Patterson

Richard North Patterson is a lawyer, political commentator and best-selling novelist. He is a former chairman of Common Cause and a member of the Council on Foreign Relations.