Tipsheet

What a Liberal Law Professor Finds ‘Deeply Troubling’ About Joe’s Bunker Mentality on Court Packing Question

Matt Vespa
Matt Vespa  |  October 09, 2020 6:06 PM

This isn’t the first time this has been uttered. It’s also not the first time Joe Biden, Kamala Harris, or the Democrats have ben cryptic in their threats on packing the Supreme Court since Ruth Bader Ginsburg died. Next week, the hearings on the Supreme Court nomination for Judge Amy Coney Barrett will begin. The GOP has the votes. Democrats seem to know this, which must add to their frustration over this situation. Hence, the continued threats about court packing. Yet, if Democrats want to truly honor RBG’s wish, they’d get off of this dangerous road. The late justice saw exactly what court packing would do to the Court. It would destroy it. And yet, we have Biden and Harris grossly prevaricating on the matter. Now, they say they will tell us their true intentions…after the election—what a blasé answer to a rather serious question. I mean, we’re only talking about a key branch of government here. This isn’t tax policy. It shows that Democrats cannot govern, but you already know that. George Washington University Law Professor Jonathan Turley noted how this avoidance on court packing from Democrats is “deeply troubling,” while adding that it’s a maneuver that will only lead to the destruction of this core constitutional institution (via Jonathan Turley) [emphasis mine]:

The refusal of Vice President Joe Biden to answer repeated questions about his position on the packing of the Supreme Court is deeply troubling. This is a proposal raised not by the Republicans but his own running mate Kamala Harris and leading Democrats.  It would destroy the Supreme Court and voters should know if Biden would consider such an irresponsible act, particularly when he previously denounced it. The refusal to stand against the proposal is a fundamental failure of leadership. Rather than confront the most extreme elements of his party, Biden has chosen to remain silent on a major issue in this election. Frankly, that is not the Biden that many of us knew from his time in the Senate. He should take a stand against this pernicious idea and defend the institution, as he did in 2019.

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When asked about calls to expand the Court, Ginsburg said it would destroy the continuity and cohesion of the Court. She added to NPR last year: “If anything would make the court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”  The greatest insult is that these individuals are using Ginsburg’s death to change the Court in the very ways that she opposed in her life.

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For the scheme to pack the Supreme Court proposed by Kamala Harris and others to work, there must be some kind of litmus test. Democrats have pledged to add new justices to ensure a bench that would vote on cases as desired. Absent such promises, the scheme is a futile exercise. The whole point is to force outcomes such as voting to uphold Roe. This rationale is reaching truly dystopian levels, with the former White House counsel John Dean insisting that, by creating a new ideological majority, Democrats would remove politics from the Supreme Court.

Litmus tests and the idea to pack the bench would not honor Ginsburg. They would instead destroy the Supreme Court she loved. These moves would obliterate an institution that has over history preserved the stability and continuity of our country. The Supreme Court has performed this vital role based on its legitimacy and authority with Americans that will surely evaporate if Democrats conduct litmus tests or pack the bench.

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Ginsburg articulated her rule because she saw litmus tests as unethical pledges. At the time, Democrats like Howell Heflin praised her position. Today, Democrats want to pack the Supreme Court and seek assurances from nominees on cases like Roe, which are two ideas staunchly opposed by Ginsburg. What is left behind is not principle but raw power, and both the Supreme Court and the country will be the worse for it.

Now, Turley noted he has criticized the so-called ‘Ginsburg rule’ regarding judicial nominees declining to answer any cases that might come before them, seeing it as an escape hatch for nominee to avoid discussing their judicial philosophy. Yet, he notes that this is different from litmus tests which Democrats want for their people.

“What politicians are advocating today, however, is a direct litmus test. Not only will they vote against a nominee who opposes a particular case, but they will do so for a nominee who does not expressly support a case,” wrote Turley. “Even if a nominee like Barrett has a foundation in the law, it is how she will vote on certain controversial cases instead of her views that will matter.”

Either Joe supports this move, which will alienate moderate and independent voters—court packing is not popular—or he doesn’t, but that would risk blowing up any good faith he has with the rising and very vocal progressive flank of the Democratic base. It’s a sliver he cannot afford to piss off—and this would do it. They already know they’re not going to get a health care policy they want. This would guarantee a sizable chunk of these left-wing revolutionary voters stay home and try again in 2024 to get the candidate of their choosing. The irony about the first debate was that Biden made a case for them to stay home without the court issue. You already know about health care, but Biden also backed away from the Green New Deal, despite what his campaign website says, and defunding the police. There was no full-throated, gung-ho endorsement of either of those things, which sadly were not highlighted because Trump may have been too aggressive in the first bout. It’s okay, though. We still have more debates before we all vote, but this court packing issue isn’t going away.