Joe Biden Cannot Answer the "Court Packing" Question Because Any Answer Will Hurt Him in November

AP Photo/J. Scott Applewhite
AP featured image
The justices of the U.S. Supreme Court gather for a formal group portrait to include the new Associate Justice, top row, far right, at the Supreme Court Building in Washington, Friday, Nov. 30, 2018. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. (AP Photo/J. Scott Applewhite)


The “organic” and “spontaneous” expressions of disaffection from left-wing nutjobs that resulted in weeks of violent protests and rioting seem to have largely evaporated once polling after the Democrat National Telethon showed the violence was hurting Biden’s election chances.  While the issue remains for Trump because the events can’t be erased from memory, the fact that there are no longer nightly scenes of street battles between Antifa/BLM rioters and police agencies in places like Portland, Seattle, Rochester, NYC, et. al., deprives the “law and order” theme of its “immediacy” as was the case 45-60 days ago.

But a second dominating issue has now emerged in the campaign, and the Biden camp is having difficulty finding a way to disengage from it — the question of whether the Democrats if they win the election for both the Presidency and take control of the Senate, will pass legislation giving them the ability to “pack” the Supreme Court rather than deal with the reality of a six Justice conservative majority [save the Roberts bashing please]  after the confirmation of Judge Amy Coney Barrett to replace the late Justice Ginsburg.

What’s noteworthy about this issue is the fact that the Democrat Party establishment is having little or no success in throttling the narrative as a campaign issue.  It’s clear that the rioting stopped with Antifa and BLM received orders from their financial benefactors to end the rioting — keep protesting but without the agitation towards violence and looting — when the Democrat political class saw it was being counter-productive to electoral chances.  But this issue persists for a couple of reasons — both of which are immune from Democrat Party “Stop” orders.


First, the confirmation of Judge Barrett is an ongoing matter, with the hearing in the Judiciary Committee now underway.   The “court-packing” question is a counter-narrative by those who oppose her nomination but have come to accept the likelihood of her confirmation.   “Court-packing” is THE APPROPRIATE response in their view.

The likelihood of a 6-3 philosophical “imbalance” on the Court compels such a response — say the INTEREST GROUPS who are the assault troops of the Democrat Party.  If the Democrats control both houses of Congress and have the Presidency, SCOTUS will still be a barrier to the neo-Marxist plans of the far left.  I have doubts that the Democrat politicians actually in office, who must run for re-election again, will actually deliver on the dreams of the AOC’s of the party, but the Democrat politicians in office need to keep them thinking they will do that in order to keep them energized for the next 3 weeks.

But the stark political reality is that “court-packing” represents an existential threat — to incumbent Democrat Senators in several swing states over the next two elections, and the 47 Democrat/Independent Senators now in office know that — starting with Chuck Schumer.  Even if he has a 51 vote majority, he would never round up all 51 votes for the “court-packing” legislation that would be needed.  To do that he would need the votes of the following Senators who would be up for re-election in 2022 or 2024:


Joe Manchin, W.Virginia

Jon Tester, Montana

Catherine Cortez Mastro, Nevada.

Maggie Hansen, New Hampshire

Krysten Sinema, Arizona

Debbie Stabenow, Michigan

Amy Klobuchar, Minnesota

Jackie Rosen, Nevada

Sherrod Brown, Ohio

Bob Casey, Pennsylvania

The GOP would make both election cycles all about “court-packing”, and issues involving the judiciary are where the GOP has historically beaten up the Democrat party.  It’s was likely a primary cause of Pres. Trump winning in 2016 on the issue of filling Justice Scalia’s seat.

So championing “court-packing” as a campaign issue would mean that the Democrats would almost immediately have to go back on their pledge if they were to prevail in 2020.  That is why you don’t hear Democrat politicians — at least not Senators and Biden/Harris — using it as a “wedge issue” over the Judge Barrett nomination.  There is no practical reality in which it would ever actually happen.

But, at the same time, Biden cannot be honest with Democrat supporters over the political realities of the subject.  So many are emotionally invested in the passing of Justice Ginsburg and the imminent confirmation of her philosophical opposite that they would never accept such honesty.  Biden already has tremendous pressure from the left because of the primary season, and because the “energy” of the Democrat Party in 2020 is at the far left extreme.  If he was to puncture the balloon of the “court-packing” dream, he could do real and irreparable damage to the turnout model he needs to win.


There will be a lot of handwringing and expressions of concern of Judge Barrett’s confirmation, and there will be a lot of talk among activists that the only possible response by a new Biden Administration is to eliminate the conservative majority on the Court by legislation.  But you won’t hear that from the candidate – there is a reason he is refusing to answer, and it has nothing to do with Republicans — although Pres. Trump and the GOP would gladly accept as a campaign issue any answer he wanted to give.

But any answer he might give hurts him in his own party most of all.  The Ginsburg vacancy and the nomination/confirmation of Judge Barrett has him “check-mated” on the issue because there is no move on the chess board he can make that does not make his position worse in some manner.




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