How Biden/Harris Might Answer The “Court Packing” Question

Those of you who read me regularly, will know I almost never do columns like this, even though lots of other people do all the time, because I know people hate listening to people telling other people what they should be doing. And by who? Me?

This week’s Vice-Presidential debate

Look, nobody likes to be told what they could’ve done better after the fact. And Joe Biden and Kamala Harris have far savvier political advisors than I am.

Just seems to me the one area where neither Democratic candidate fared well in either of their debates—during otherwise commendable performances—is when they were asked if they would consider “packing the court” if they won. That is, adding more Justices to the Supreme Court to even out the balance of political bias. 

As that bias is becoming more obvious than ever. And even almost celebrated. For instance, Justice Clarence Thomas, in a few recent opinions, seems almost giddy about the idea that the Court loosen way up on one of its guiding principles: that of stare decisis, which literally translates from Latin as “to stand by things decided”. And in practical terms means Justices respect long-held prior decisions even if they don’t totally agree with them. Partly because if they didn’t, nobody would know what to do, or what decisions to adhere to if the court could be changing them tomorrow, and then again next year. And that could send ripple effects across society. Or even societal tidal waves. But to Justice Thomas, it’s high time the Court should just start overturning things. At least partially, it seems, because now there’s opportunity. Which of course is supposed to be a political motive; not really supposed to be a legal one. At least not for the high court, nor the Judicial Branch in general.

In the first Presidential debate Biden was asked that court packing question by moderator Chris Wallace. In the Vice-President debate, Harris was posed that question by Pence, as part of his evading a question he’d just been asked about what President Trump has in mind for replacing Obamacare. Which Pence of course never answered. Because he can’t.

So Harris could’ve parried by pointing out:

The moderator respectfully asked you a question about President Trump’s health care plan. Which he’s claimed have virtually ready for the last 4 years. But you can’t answer that question. Because the plan doesn’t exist. So you turn to me. I am not your escape hatch.”.

But, I kinda of hate that I just said that. Because it really irks me when other people do stuff like that on Twitter or in opinion pieces, or wherever. You know, saying what someone could’ve said. You know, Monday morning quarterback and all that. Because wasn’t me in the hot seat.

With that said, I want to make a very modest proposal about how to maybe think about answering the “court packing question” without it becoming even more of a soft spot and weak point for the Democratic candidates.

Before you send me comments pointing out it’s still a non-answer. Yes. I know. And leave out the “boycott” part if you want. It’s just something I still strongly believe Democrats should do, but looks like they won’t. Anyway, this is what I came up with:

We don’t want to mess with the Supreme Court. You’re the ones who are messing with the Supreme Court by rushing an approval through days before Election Day; after early voting has already started, instead of letting the American people decide, as part of the election. As you insisted they do last election, months and months before Election Day, not just a few days before. And they did. That’s why we’re boycotting your utterly hypocritical process. You’ve also tried to make a mockery of the Supreme Court during your four years in office but running to it for relief every time you get a little boo-boo. More than any President in history. So don’t talk to us about wanting to mess with the Supreme Court.”