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Why Hasn't Joe Biden Said No to Democratic Threats to Pack the Supreme Court?

The opinions expressed by columnists are their own and do not necessarily represent the views of
AP Photo/Carolyn Kaster

Will Joe Biden's stubborn insistence that Americans "don't deserve" to know where he stands on packing the Supreme Court cost the Democrats in the Nov. 3 election?



At issue are numerous Democratic threats -- if they win the White House and control of the Senate -- to increase the number of Supreme Court justices and ram liberal policy into law that they otherwise couldn't dream of getting through Congress.

The First Amendment, the Second Amendment, religious liberty, freedom of speech, the right to defend yourselves, all would be fair game to a packed liberal Democratic court.

The number of justices has been set at nine for 150 years, and even President Franklin Delano Roosevelt, with a Democratic supermajority in Congress, failed when he tried increasing it in 1937.

Biden was offered up by his party as a moderating voice against the hard left that brings energy, rage, and an ever-present threat of political force to muscle through its agenda. By saying voters "don't deserve" to know if he supports packing the court, Biden caves to the radical wing of his party.

The left, as we've seen for years now and especially this past summer, is about force. Force in the streets, destroying history, and tearing down statues, even statues of abolitionists. Force on campuses threatening and silencing dissent. Force of the cancel culture, which is all about intimidating those who disagree, at schools, at the workplace, even in American newsrooms.

And now we see the threat of force against the independence and credibility of the Supreme Court, the one stable institution in a nation divided by angry tribal politics.


Biden once thought court-packing would undermine the court's independence and called it "boneheaded" years ago.

But he's been dodging the court-packing issue on the campaign trail for weeks.

Just the other day, a reporter in Las Vegas pressed Biden, asking: "Don't the voters deserve to know where you stand?"

"No, they don't deserve," Biden said. "I'm not going to play (Donald Trump's) game."

But this isn't Trump's game. This is the Democrats' game, and it's all about threats and force to damage an institution. And that's no game, Joe.

Trump and Republicans aren't the authors of this. Democratic candidates for president, including Kamala Harris, were quite open to the idea.

Democrats are incensed at President Trump's nomination of Judge Amy Coney Barrett. And Senate Minority Leader Charles Schumer of New York, echoing his party, says that everything is "on the table" if Democrats take the Senate and the White House.

Now, fearful of angering his party's left wing, Biden is avoiding the issue. It is a clear indicator of how he'd govern as a figurehead president, a dry reed in their wind.

"There's only one reason why you refuse to answer that question: It's if you're wanting to be able to do it but you don't want to take the heat for the fact that you're thinking about doing it right now," Republican Sen. Mike Lee of Utah said.

But the court-packing issue is not going to go away. It was front and center during Judge Barrett's Senate confirmation hearings. And Lee took full advantage in his remarks, telling Democrats that by adding members, they would "delegitimize the court."


"And you can't delegitimize the court without fundamentally threatening and eroding and impairing some of our most valued liberties. You can't do that (court-packing) without inevitably threatening things like religious freedom, things like free speech, things that are themselves often unpopular but are protected by the Constitution precisely because they are unpopular.

"The whole reason to have a Constitution is to protect us from the impulse of a majority that might be bent on harming the few in the name of the many," Lee said.

Yes, conservatives push the issue for their political advantage. And yes, Democrats frantically try to spin it away while hoping their allies in the liberal media do the spinning for them, insisting that all they're doing with the court-packing threat is responding to Trump's appointment of Barrett before the election.

But it's not the same thing.

Trump and the Republicans are following the Constitution. Republicans in 2016 declined to give a hearing to President Barack Obama's nominee Merrick Garland. I supported that delay because I wanted the people to decide. And the people did decide. Trump was elected in 2016, running while offering a list of conservative judges he promised to appoint. The Republican Senate held its majority in the midterm election. The people did decide.

Not all journalists are carrying Biden's water. CNN's Jake Tapper was puzzled by Biden's refusal to answer, given that in the past Biden had been clearly opposed.


Because in 1983, the old Joe Biden, the clearheaded and moderate Joe Biden, ridiculed court-packing as a threat to the republic in a Senate speech.

He noted that President Roosevelt had the right to try under the Constitution.

"But it was a bonehead idea," he continued. "It was a terrible, terrible mistake to make, and it put in question for an entire decade the independence of the most significant body -- including the Congress, in my view -- the most significant body in this country, the Supreme Court of the United States of America."

Earlier this week, Biden said he was "not a fan" of court-packing. But that's too equivocal and hardly a direct answer.

What happened to Joe Biden?

He wants to win.

He failed in his quest for the White House before, and now he so desperately wants to be president that he'd countenance threats from the left against the independence of the Supreme Court.

And that's what happened to Joe Biden.

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