Last week, in Las Vegas, Joe Biden once again declined to clarify his position on packing the Supreme Court when asked by a local reporter.
The reporter, however, pressed the candidate, asking, “Well, sir, don’t the voters deserve to know?” In a response all too reminiscent of Hillary Clinton’s infamous “deplorables” gaffe, Biden barked at the reporter, “No, they don’t.”
To actually suggest voters don’t “deserve” to know his position on a key issue that would fundamentally change the very nature of the Supreme Court and threaten the separation of powers doctrine that underpins our federal government, raises questions about Biden’s character and suitability to handle the job.
Though he finally acknowledged his previous opposition to court packing on Tuesday, Biden still refused to say whether it is his view today or whether he now favors an expanded court. If he’s against packing the court, his failure to give a straight answer might be explained by the fact that his own Democratic Party is divided on the issue. Or does he fear that less partisan voters, who will likely determine the election outcome, are not only far from enthusiastic about transforming the current makeup of the court but might see support for court packing as evidence that a Biden administration would move the country to the extreme left?
Our Sept. 26-30 Winning the Issues survey found voters opposed to expanding the court, with 33 percent in favor and 41 percent opposed. And by a 42 percent to 29 percent margin, they believed that “adding seats to the Supreme Court through court expansion would mean we begin to lose any credibility the court has.” On the issue of expanding the number of justices, liberal Democrats were more supportive (56 percent in favor, 23 percent opposed), but moderate Democrats were less so (38 percent in favor, 28 percent opposed), a major difference within the party. Independents opposed it 17 percent to 47 percent.
The Biden-Harris ticket faces a tough call — take a stand and risk alienating the progressives already suspicious of Biden’s promises, or scare moderate voters who are wary that a politically motivated change to the composition and character of the court would do irreparable damage to its credibility.
Gutting the rules
What would the court look like in 20 years? Starting with 2000, we have had three transitions of complete party control — 2001 for Republicans, 2009 for Democrats, and 2017 again for Republicans. If packing had been in place, we could have been looking at a Supreme Court potentially with 20 to 30 justices.
It’s important to remember that the only path to packing the court would require Democrats to change the rules and end the filibuster for legislative actions. It means Democrats would have to gut the minority party’s voice in the Senate and be willing to explain to the American people why they are willing to sacrifice the long-held principle of minority party rights that has served the Senate and the country well.
They would also be responsible for establishing a court that would no longer operate as a separate branch of government, a safeguard against either executive or legislative overreach, but instead would become nothing more than an extension of the party in power. In essence, this would be a fundamental restructuring of government, reducing the branches of government from three to two.
The Senate has been on the brink of ending the filibuster twice in the last 15 years. In 2005, Majority Leader Bill Frist, frustrated by a Democratic filibuster of seven federal judicial nominations that had gone on for months, considered changing Senate rules to end the filibuster. In the end, Frist made the decision not to “go nuclear,” concluding that, long term, keeping the filibuster in place was better for the institution of the Senate and, therefore, better for the country.
Eight years later in 2013, it would be Harry Reid and a Democratic majority that would do away with the filibuster for executive branch appointments and judicial nominations, with the exception of the Supreme Court. Despite warnings from the minority that it was a decision they would live to regret, Reid and the Democrats deployed the nuclear option anyway.
Their day of reckoning came on Jan. 20, 2017, with a Republican president and Senate in control of judicial nominations. For the past four years, President Donald Trump and Republicans have done their constitutional duty in nominating and confirming federal judges, including now three Supreme Court nominations. But don’t blame Trump or Senate Majority Leader Mitch McConnell. Blame Harry Reid who put politics ahead of principle and opened the door for Justices Neil Gorsuch, Brett Kavanaugh and soon Amy Coney Barrett.
In April 2017, a bipartisan group of senators — 32 Democrats and 29 Republicans —signed a joint letter to McConnell and Senate Minority Leader Chuck Schumer. In it they called on their leaders to oppose “any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.” In other words, don’t end the filibuster. That’s pretty straightforward and, presumably, would include legislation that would be needed to increase the size of the Supreme Court.
The effort was led by Republican Susan Collins and Democrat Chris Coons and included a number of members of the current Senate Judiciary Committee, among them, Chairman Lindsey Graham, Chuck Grassley, Patrick Leahy and Kamala Harris. Only time will tell whether the 32 Democratic senators who favored keeping the filibuster when they were in the minority will feel the same if they find themselves back in the majority after November.
If Biden wins and Democrats retake the Senate, they will have a big decision to make. Is packing the court with liberal justices and pushing through legislation unimpeded worth destroying the independence and credibility of the Supreme Court? Is it worth silencing the minority party’s crucial voice in the Senate and changing the nature of the body forever?
James Madison argued in The Federalist Papers of the importance of the separation of powers to the country’s democratic form of government: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny.”
David Winston is the president of The Winston Group and a longtime adviser to congressional Republicans. He previously served as the director of planning for Speaker Newt Gingrich. He advises Fortune 100 companies, foundations, and nonprofit organizations on strategic planning and public policy issues, and is an election analyst for CBS News.