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Biden Will Pack the Supreme Court

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.
AP Photo/Andrew Harnik

Amidst all of the night’s theatrics, the biggest news from Tuesday’s debate was what Joe Biden wouldn’t say, rather than anything President Donald Trump did. Once again, Biden refused to say whether he would expand the size of the Supreme Court to pack it with liberals. After the debate on CNN, his running mate, Senator Kamala Harris, also refused to answer the question.            


It’s painfully obvious why Biden avoids the topic. His entire campaign strategy relies on winning over disaffected moderate voters who may not love Trump’s personality but don’t want to see far-left policies either. For these voters, Biden needs to portray himself as a moderate and so he cannot admit that he wants to create a permanent liberal majority on the court, one that would significantly restrict second amendment rights, defer to the federal government’s ever-growing administrative state, and make it harder to enforce our immigration laws.            

The fact Biden refuses to commit to keeping the Supreme Court at nine justices makes it painstakingly obvious he will support expanding the Court; otherwise, he would come out against the idea. Trump and Republican candidates up and down the ballot must raise the profile of this issue. Not only would court-packing serve to negate President Trump’s three nominations to the court, thereby negating the will of we the people in the 2016 election, but it would also send us down a deeply escalatory path of parties changing the rules of the game every time they take power, turning our vibrant republic with its brilliant checks and balances into a majoritarian tyranny veering from one extreme to the other.


Senate Republicans should bring this issue to the forefront by voting on a constitutional amendment that would fix the size of our Supreme Court at nine justices. Indeed, Senator Marco Rubio and several of his colleagues already proposed such an amendment last year when court-packing seemed like a remote issue. Now, it is a clear and present danger to our republic, and every Senator should be put on the record.         

Majority Leader Mitch McConnell can force a Senate vote on this amendment and put every Democrat on the record on this issue. Ideally, there would be the necessary sixty-seven votes to pass the Senate and send the bill to the House for a vote, and we could put to rest this dangerous idea. Realistically, enough Senate Democrats will vote “no” on this amendment to block its passage, but that will lay bare for voters Democrats’ true ambitions and clarify the massive stakes of this election. Such a vote will also raise pressure on Biden to formalize his position.            

Democrats have gained among college-educated voters due to this narrative that Trump is a “norms-defying” and “institutions-destroying” President. In reality, Trump may talk differently than most Presidents but has respected America’s institutional structure. Our courts are intact, decisions respected. Heck, rather than fire Mueller, he answered questions from the special counsel while supplying thousands of documents.            


Despite his “aww shucks” persona, Biden, and the Democrat Party he leads seek to truly transform our governing structure. They want a court that legislates their agenda rather than rule on the merits of the law, and so they will add as many justices as it takes to manufacture their preferred rulings. To do this, they will have to eliminate the Senate filibuster, an idea now endorsed by even former President Barack Obama. With the filibuster gone, Democrats could socialize healthcare, pass extremist federal abortion language, make Puerto Rico and Washington DC states, and unilaterally grant amnesty to millions of illegal immigrants in an effort to build a permanent electoral majority. They will change the legislative rules, the number of justices, the number of states, and even the number of citizens to achieve their preferred ends.   

That is a norm-shattering agenda. That will break our institutions. And that will only further embitter a partisan divide that is ripping our nation apart. Once a political party starts amending a constitutional structure to achieve a partisan aim, we will descend down a slippery and dangerous slope. Putting Amy Coney Barrett on the Court will be utterly inconsequential if Democrats turn around immediately to add justices in their effort to erase Trump’s Presidency from the history books.           


 Senate Republicans should vote on a nine-justice constitutional amendment to safeguard our republic and show the Democrats for the arsonists they are. President Trump and Republicans should campaign heavily on this issue over the next five weeks to combat this falsehood that Biden will be a protector of our norms. The very essence of America is at stake. 

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