Court Packing

Biden's Sudden Reticence on Court Packing Is Alarming

Although Democrats think the composition of the Supreme Court is a big election issue, their nominee won’t say what he plans to do about it.

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Judging from their grandstanding during Amy Coney Barrett's confirmation hearing, Democrats think the composition of the Supreme Court is a big issue in next month's presidential election. Yet evidently it is not big enough for their candidate to tell voters whether he favors expanding the Court to accommodate his policy preferences.

"You'll know my opinion of court packing when the election's over," Joe Biden told reporters last week. His unwillingness to discuss the issue should alarm anyone who values judicial independence as a bulwark against the abuse of power, regardless of which party happens to be wielding it.

Biden himself explained the threat posed by court packing as a senator in 1983. "It was a bonehead idea," he said, referring to Franklin D. Roosevelt's 1937 plan to make the Supreme Court more receptive to his New Deal agenda through legislation that would have authorized him to appoint up to six additional justices.

That plan "violated no law," Biden noted. Still, "it was a terrible, terrible mistake to make, and it put in question for an entire decade the independence of…the Supreme Court."

Last year, Biden was still opposed to FDR-style bullying. "I'm not prepared to go on and try to pack the Court, because we'll live to rue the day," he told Iowa Starting Line in July 2019.

Biden was equally firm during a Democratic presidential debate three months later. "I would not get into court packing," he said. "We begin to lose any credibility the Court has at all." As recently as January, Biden told The New York Times he had no judicial reform plans.

But as court packing gained favor among Democrats outraged by Senate Republicans' decision to keep Antonin Scalia's seat open for Neil Gorsuch and their swift action to replace Ruth Bader Ginsburg, Biden was suddenly silent. He conspicuously refused to rule out court packing during his debate with President Donald Trump last month, and so did his running mate, Kamala Harris, during her debate with Vice President Mike Pence last week.

It's not as if Democratic anger at Republicans' hardball tactics makes the lessons of FDR's failed bid to expand the Court less salient. Roosevelt's plan was never popular with voters, and it provoked intense opposition from Democrats, who controlled the House and Senate, as well as Republicans.

House Judiciary Committee Chairman Hatton Sumners refused to back the president's bill. Roosevelt's own vice president, John Nance Garner, was against it.

The Senate Judiciary Committee issued an adverse report on FDR's plan that said it "does not accomplish any one of the objectives for which it was originally offered" and "violates all precedents in the history of our government." The committee called the bill "a dangerous precedent" that "would undermine the independence of the courts," violate "the spirit of the American Constitution," subvert "the rights of individuals," and weaken "the protection our constitutional system gives to minorities."

FDR eventually reshaped the Supreme Court in the usual way, filling eight vacant seats. But he paid a huge political cost by trying to jump the gun.

"When the dust settled, FDR had suffered a humiliating political defeat," notes historian Michael Parrish. "The protracted legislative battle over the Court-packing bill blunted the momentum for additional reforms, divided the New Deal coalition, squandered the political advantage Roosevelt had gained in the 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism."

Biden is candid about the reason for his reticence about emulating FDR. "It's a great question," he conceded last week, "and I don't blame you for asking it. But you know, the moment I answer that question, the headline in every one of your papers will be about that [instead of] focusing on what's happening now."

What's happening now, of course, is a decision about whether to replace Trump with Biden. Voters deserve to know whether Biden now thinks FDR's "bonehead idea" was pretty smart after all.

© Copyright 2020 by Creators Syndicate Inc.

NEXT: If Amy Coney Barrett Has To Apologize for Saying Sexual 'Preference,' Does Joe Biden?

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  1. Not as alarming as Bad Orange Man, according to several of your colleagues.

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    2. Its all secret code that everyone knows the plan. Biden will be replaced or will resign allowing Harris to be President.

      Democrats lie and packing the court with more justices than 9 is not polling well, so the Democrats get cagey about it.

      Luckily, Trump will be reelected and the Democrat Party will fracture into its factions.

      1. Are you predicting a red wave again, clinger?

        1. Notorious ACB gonna crush you progs in the culture war. It’s Handsmaid’s Tale for you Arty.

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    3. Agreed. I was told the Orange Man was the greatest threat to freedom from one of the Reason staff.

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  2. This whole thing is bizarre. Throughout my childhood, I had heard the phrase “The switch in time that saved nine”. This was the moment that a different Justice Roberts decided to swing towards the liberal justices, and uphold a minimum wage law. Prior to that, the SCOTUS had generally voted to prohibit the Federal Government and in some cases State Governments from regulating business activities.

    However, a couple months before West Coast Hotel v Parish was decided, FDR announced his court packing bill. Within that year, this decision had signaled a softening of the court, and one of the conservative justices had announced his retirement.

    Mind you, I loathe the idea of packing the court. But this frankly feels like gaslighting. If the court packing bill had not been a credible threat, then why would Roberts all of a sudden vote to uphold Washington’s minimum wage law, when he had been a reliable advocate of the Lochner era? And why would generations of following law scholars repeat the Switch in Time quip?

    FDR has long been lionized by the left and center for his New Deal. It is truly bizarre that now there are these claims of the court packing unpopularity.

    1. Why would the sitting justices care? Their jobs would be safe, so why should they change their decisions so as to dissuade the appointment of some more colleagues? It’s not like they split up their salaries.

      If they cared about the outcomes, why make it easier by making it appear they had those opinions, instead of making other judges outvote them? So I never believed the switch in time meme.

      1. It’s a bit like industry self regulation. They’d prefer to do it to themselves than have it done to them. Overall the result is the same but the details are a little more comfortable for the industry (or in this case, the justices).

      2. You can read a few of the journals and biographies of the justices at the time…

        1. Giving retiring Justices a sizable pension helped the Court’s reticence towards FDR’s policies too. This was still during the Depression, and AIUI, a lot of the Justices would be broke were it not for their SCOTUS salaries and benefits. (If their cafeteria is anything like the Senate Dining Room, it’s not bad.)

          So, faced with getting their prestige lessened by adding 6 or so new Justices, and/or getting outvoted if their colleagues decided to switch to pro New Deal views. Versus or choosing to retire, get paid by these new, improved pensions, and do a lot less work, the choice looks pretty easy.

      3. You really don’t think these Justices sit there because of the paycheck or potential for otherwise sitting on an unemployment line, do you? Taking the position and the crap that comes with it has a lot of potential motivations such as historicity, effect on public policy, mark on society, legacy, etc, but income isn’t even on the table.

        Every Justice that I’m aware of wants to write THE opinion, not be the wallflower who concurs.

        As for Roberts, those who wish to retain a legacy of wisdom and humble nobility for him hold onto this idea that he sacrificed his true opinion for the greater good. RAH! RAH! Others of us have strong reason to suggest the man may have been threatened with an outing and trial in the public for some severe oddities that went on with his children’s adoption. It’s at least seriously questionable.

        There’s little that could take down these Justices except for the inherent personal humiliation and historical damage done to every court opinion they’ve written and/or made the majority opinion, unless it’s a threat to the structure of their own family. All bets are off.

    2. FDR’s own party condemned his court packing scheme. That’s how unpopular it was.

      1. Your citation fell off.

        1. Read any history. It is well-known, not some mystery surprise.

          But since you admit your ignorance, here ya go.

          President Franklin D. Roosevelt pushed a proposal that would have let him appoint six new justices to the bench, flipping the makeup of the court. The measure failed, and some have argued that it seriously damaged Roosevelt’s political capital.

          The Judicial Procedures Reform Bill of 1937 sparked controversy and never left its committee in Congress. The administration failed to confer with congressional leadership in proposing the bill, so the chairmen of the House and Senate Judiciary Committees both let it falter. Texas Rep. Hatton W. Sumners and Arizona Sen. Henry Ashurst, both Democrats, refused to push Roosevelt’s bill through committee to a floor vote.

    3. The threat of court packing was so inferred as the reason Wickard was decided, one of the single worst decisions ever made and the beginning of massive federal over reach. While occurring a few years after the threat of court packing it is believed the court remained different to FDR for the next few years as major cases were decided in favor of FDRs administration that were shot down not even 10 years prior.

    4. Agreed. This article conveniently leaves out the fact that the Court-packing threat did work, as it ultimately caused the Supreme Court to reverse decades of precedents in favor of progressive ends. Very strange.

  3. I would give Biden the benefit of the doubt on this one. He doesn’t have an opinion yet and won’t be given one until after the election. If the Dems take the Senate, his opinion will be that the Court needs to expand to better represent America. If the Repubs hold on to the Senate, his opinion will be that the Court is fine with nine.

    1. I think you’re right, the idea of packing the court is one that has been suggested and rejected before. With the Democrats once again floating the idea, we’ll have to look at the election results to see whether or not that idea might fly this time around. There’s no enthusiasm for Biden, the question is, are the lunatic fringe going to hold their nose and vote for him just as a way to get a foot in the door? If Biden wins, that answer would be “yes”, and the lunatic fringe wants everything and they want it now, they’ll gladly pack the court because they have no respect for the Constitution and the norms and traditions of our government. So if the Dems win, expect court packing, it’s a winning idea. If the Dems lose, we’re not quite yet ready to throw everything out the window and go full-bore communist dictatorship.

      1. “go full-bore communist dictatorship.”

        no…it will be “go full-bore feudal oligarchy”. The communist dictatorship is just to get the useful idiot plebes on board. Once the oligarchy is fully in control all those promises go out the window.

        1. Correct, but they will likely follow any leftist president to keep the appearance of the oligarchy in the background for as long as possible, and at most give token allowances to the other side so it doesn’t look like they are overly in the tank.

      2. “go full-bore communist dictatorship.”

        no…it will be “go full-bore feudal oligarchy”. The communist dictatorship talk is just to get the useful idiot plebes on board. Once the oligarchy is fully in control all those promises go out the window.

    2. Maybe. But if he wins, will he really be making the calls? And for how long? Don’t we also have to worry about Harris’s opinion about packing? Or about that of the yet-to-be-determined group of advisors who will be calling the shots from behind the curtain with Biden sent out (rarely) as a figurehead with a teleprompter?

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  6. I don’t believe the Democrats are stupid enough to pack the court. They know it would trigger retaliation from Republicans, just as Reid’s nuclear option did and as their games with judicial nominations did.

    I believe that Biden and the Dem leadership know this, but admitting it before the election would piss off their voters, so they pretend it is still possible. Especially with the ACB hearings right now, they want to rile up their voters and keep them riled up as long as possible. But after the election, they have nothing to gain by threatening to pack the court, and a lot to lose from Republican retaliation.

    The one thing I do wonder about is how the Republicans would retaliate. The Democrats would have to add four justices to change 6-3 to 6-7, and probably two more for padding to 6-9. No way would the Republicans want to add six more again for 12-9 insurance.

    I think more likely they’d try for a constitutional amendment setting it back to 9, with the newest ones farmed out, which would be legal if done in the amendment.

    1. I disagree = I don’t believe the Democrats are stupid enough to pack the court

      It is not stupidity. It is the pursuit of absolute power. For this reason alone (the palpable threat to pack SCOTUS), Sleepy-Creepy Joe must be vigorously opposed.

      1. It is at least a certain type of stupidity: the inability to see beyond the moment. Plenty of partisans will do something that has immediate benefit without understanding how this will affect their future.

      2. By “stupid”, I mean do something which will have such negative consequences. I believe they understand those consequences and will not push court packing. Noise, yes, lots of noise, but no action.

    2. > I don’t believe the Democrats are stupid enough to pack the court.

      I envy your optimism. I believe that they are exactly stupid enough to think that there will be no consequences, same as they always do.

      1. I can’t remember a time recently when politicians didn’t take the sure short win to prevent a long term potential loss or turn down power for the sake of the country. Many Dems right now that they are willing to take the chance that they can seize permanent power, and those who don’t want to comply have legitimate concerns about the radical left going scorched earth on them too if they don’t capitulate. The same thing that Hugo Chavez did. Yes, it permanently fucked up the country, but it was a win for him.

    3. Do you not think the Dems are capable of trying to steal future elections? They’re already projecting using the Supreme Court to decide future elections during this very confirmation.

      Remember, before Newt Gingrich, Dems controlled the house for four decades. Why wouldn’t they think, with complete control of the Supreme Court, and enough Obama judges in lower courts, that they couldn’t use the judiciary to control all three branches for decades?

      1. And what JeremyR said below.

    4. Quick question, if a vote can expand the court could it shrink the court? If say the Dems add 6 seats could not the next time the Republicans are in power could they shrink it back to 9, removing the last 6? For that could the Dems just remove the last 3 justices leaving Thomas, Alito and Roberts as the only Republican justices with Roberts being more of a swing vote than a conservative.

      1. Your point is exactly why messing with the number of justices is ridiculous. If there is a threat of increasing the number then the number can be decreased too.

        Lefties would have a shitfit if Republicans lowered the SCOTUS number to 7 and simply impeached Sotomayer and Kagan for some trumped up removal reasons.

        All these stupid Democrat plans have backfired on them and will continue to backfire on them because Democrats are no longer competitive nationally. Getting rid of the filibuster for judicial appointments. Obamacare. Attempted impeachment of Trump. Attempted coup of Trump….

        1. Can’t be decreased without impeaching all the extra justices. Their position if guaranteed for life.

        2. Well, not likely. Once packed, it’s virtually impossible to unpack. It would require a law passed by both houses and signed by the president, which of course means you have to own both branches and the WH, which is a very hard time coming if Dems do as I suspect.

          If they win the Senate and WH this time, they will certainly pass laws making it much harder for ANY GOP victory any time in the near future. They’ve already put it out there that they want to turn DC and Puerto Rico into States, eliminate just about every requirement for voting, etc. Then you have two more problems, how to get rid of extra Justices, and whether SCOTUS itself could rule that a law to reduce SCOTUS is Constitutional. I don’t know what happens then.

          So in theory, yes it is possible to reverse the flow, but practically, this isn’t something you want to bet on, much less bet on that they will ‘realize the folly’ of doing it. At the very least, you have a very long time with a far left court that will create or allow to be created, a lot of things that for all practical purposes can’t be undone, much like today’s SS, Medicare/Medicaid, and ACA. Politically speaking, the damage can only be done, not undone.

      2. Under Article III Section 1 of the Constitution, SCotUS judges are appointed for life:

        > “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”

        The only Constitutional way to shrink SCotUS is gradually, one-by-one, by not replacing individual justices as they die or retire. Congress did this in 1865-1868 to prevent the ferociously racist President Andrew Johnson from appointing new justices. After Johnson left office, Congress increased the number of Justices back to nine.

        1. That language doesn’t guarantee a lifetime appointment.

    5. I don’t believe the Democrats are stupid enough to pack the court.

      They’re stupid enough to let Harry Reid change the senate rules to confirm appointments on a simple majority. They’re also stupid enough to nominate Joe Biden.

      If they get the white house and the senate both, they may very well go ahead and pack the court, and they’ll be shocked when the second Constitutional Convention is called.

      With every state having the same representation at the convention, they’re not going to like the new rules.

      -jcr

      1. Sans a Constitutional Convention creating a legal bulwark against their plans… what can the GOP do to retaliate? If they Dems pack the court with true-blue partisans… what recourse does the GOP have on anything? Any dispute over behavior/tactics will be litigated. And if it goes to the SCOTUS (which has now been thoroughly packed) how do the Dems lose?

        “Right there in the penumbra of rights it says the GOP can get bent. Case closed.”

      2. A Constitutional Convention would be a dangerous roll of the dice. It is hard to imagine the First and Second Amendments emerging without serious damage.

        1. If the first and second amendments are removed in the convention, then there are plenty of states who would secede.

          -jcr

    6. “I think more likely they’d try for a constitutional amendment setting it back to 9, with the newest ones farmed out, which would be legal if done in the amendment.”

      Unless the GOP gets 2/3 of the seats…that seems unlikely.

  7. That was before they had the idea of adding more states, so the Democrats would always control the Senate.

    1. Don’t forget enlarging the House — and with it, the Electoral College — which would diminish the undeserved, structural magnification of rural votes.

      Enlarged Supreme Court

      Enlarged House (and Electoral College)

      Admitted states (aligning Senate with majority preference)

      Eliminated filibuster (diminishing amplification of backwater voices)

      Criminalized voter suppression

      Enacted single-payer health care

      It might be 40 years before Republicans — or whomever replaced Republicans — would sniff a majority in the House or Senate.

      1. Don’t forget enlarging the House — and with it, the Electoral College — which would diminish the undeserved, structural magnification of rural votes.

        Actually, since it would grow proportionally, it wouldn’t have any effect on the Electoral College.

        Fucking idiot.

        1. He is pretty stupid.

          1. Get an education, clingers.

            More representatives (and electoral voters), apportioned by population, would diminish the clout that backwater states such as Wyoming and the Dakotas get from having two senators and a single representative (or perhaps two) despite their anemic populations. California would benefit, as would Texas, New York, Pennsylvania, Illinois, and other large states. Adding 200 or so representatives would making Wyoming roadkill at the Electoral College.

      2. Don’t worry, child, I’m sure that Santa will bring you everything you are asking for.

    2. Well you could split California and have one Blue state and one sort of reddish Swing state. Or the three way split which sometimes gets mentioned, one Blue, one Red, and one Swing. Which is why the proposals never get anywhere, because there’s no advantage to the current power structure. Any obvious gerrymandering would be rejected, but the only logical places to split the state doesn’t maintain a clear Blue advantage.

      The Bay Area will always and forever be Deep Blue. Sacramento environs will go with whoever holds power, because it’s solely a government town. But probably lean left because of Davis. Southern California is actually somewhat swingish, with Blue Los Angeles balanced by Red suburbs, Red Orange County, and reddish San Diego. And of course, everything to the east of I-5 is Deep Red, except when it comes to pork where they often flip to whoever promises the most farm subsidies. They’re whorish like Iowa that way.

      So however you split it, north to south, west to east, in three with southern, northwest and east, you just don’t get a clear Blue advantage.

      But I still think it needs to be done. I’m tired of San Francisco and Berkeley representing our state. Let them keep Sacramento, then move the second capital back to Monterey. They get pot fields, we get Hollywood. Oh wait…

      1. The Bay Area will only be deep blue so long as the money and stability is there. An economic depression with crime, will be the metaphorical mugging that turns liberals into conservatives.

        They very success of our golden age of prosperity has created the warped philosophies that will lead to a downfall.

  8. IF the democrats get the presidency, they will almost certainly get the senate and retain the house. 2020 will be the last (mostly) free election in the USA until the revolution.
    Of course the democrats will pack the court.
    They will also try to force in two or more likely democrat states to ‘pack’ the senate and house.
    They will eliminate the electoral college in the name of diversity.
    They will fudge the census to further lock the legislature, and pass every ballot control measure they can think of.
    The Republicans cannot strike back because they will never again hold power of any significant effect.

    1. They will eliminate the electoral college in the name of diversity.

      Can’t do that without 3/4 of the states agreeing to the amendment. If they really push hard on it, then a lot of states would be better off seceding.

      -jcr

      1. Democrats know they dont need to amend the Constitution.

        Judges are not striking down their unconstitutional law (like ObamaCare), so Democrats were getting away with Legislating changes to the Constitution.

        Democrats know that Barrett, Kavanaugh, Gorsuch, and Thomas represent a voting bloc that they cannot control. Alito and Roberts (especially Roberts) are tossups but Alito is mostly conservative. This is why packing the court talk is coming from Democrats.

        Luckily, Trump will be reelected and the judiciary will have normal replacements of judges by Trump and those judges can stand up to Democrats still in office after the Party of slavery fractures.

      2. States can individually decide to give their EC votes to the popular winner and the Feds can’t do anything about it. As such, the current push to get a selection of states that equal 270 or greater EC votes to adopt a “popular vote winner gets our EC votes” system could eliminate the EC without touching the Constitution.

  9. Biden and the Democrats know that they can put continual pressure on the existing Supreme Court by allowing court-packing to be an open issue.

    There’s no advantage for them to rule it out.

    1. Its not polling well with swing voters. So Democrats are being cagey until after Biden loses the election.

  10. There is no reason for Biden to answer this question. It is simply an attempt to divide his supporters. Does it really matter what he say because Republican said voter should decide who picks a nominee in 2016 and changed in 2020. Whatever he say he could just change. Better to let this one question sit. It is also worth noting that after the election it will be Biden, Schumer, and Pelosi in charge. Three moderates that are unlikely to be pushed into court packing. A better strategy for the Democrats will be to get more voter into the game, by granting statehood to DC and Puerto Rico, and a constitutional amendment to guarantee voting rights.

    1. There is every reason for Biden to answer. Most importantly, the American people deserve to know whether the leading candidate will upend 156 years of having 9 Justices and 229 years free of Court packing. That should be enough in and of itself and would be to anyone who actually operated on firm political and moral principles. On a more political level, moderates deserve to know what policies they’re supporting in choosing a candidate.

      1. Biden’s staunch and unabashed refusal to answer the question should be seen as a red flag to anyone not already entrenched in a partisan tribe. I think for anyone purporting to be an independent, the failure to take a definitive stance should be seen as disqualifying.

      2. Moderates have plenty of information about Joe Biden and an answer to this question is not necessary. Yesterday, a nominee to the Supreme Court, a avowed textualist told the American people should could not answer questions about things laid out in the US Constitution regarding the date of the election and the peaceful transfer of power. If you think that Joe Biden should answer this question then apply the same standard to Amy Coney Barrett.

        1. Barrett isn’t a legislator running for office. She’s a sitting judge. And no, she can’t answer that question, since this election is likely to end up in the USSC.

          1. Joe Biden was asked a hypothetical question, Amy Coney Barrett was asked factual question about the Constitution. As an avowed textualist she should have been able to answer the questions. If she need to see briefs and talked to colleagues about a this then she is not deciding on text and she is a fraud.

            1. What was the question?

              1. The question was does the President have the power to delay the election. For a textualist the answer should be no, as Article 2, Section1, clause 4 gives Congress the power to set the date of the election. It is specifically stated and does not need brief or discussion if you are a textualist. It is a factual, not a hypothetical question.

                1. The question was:

                  “Does the Constitution give the President of the United States the authority to unilaterally delay a general election under any circumstances? Does federal law?”

                  This is not a factual question. It is a hypothetical question. Feinstein did not specify what the circumstances were. She asked whether, “under any circumstances,” the President had the power to delay an election. Conceivably, one such circumstance could be Congress passing a law granting the President the power to delay an election. That would presumably be constitutional. Granted, the question of non-delegation could be raised.

                  The answer to this question was unimpeachable.

                  “‘Well, Senator, if that question ever came before me, I’d need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion-writing process,’ she said. ‘So, you know, if I give off the cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.'”

                  Feinstein’s question was a poor one.

              2. Should she tell the Dem Senators to “fuck off”?

              3. What was her answer?

              4. “The question was does the President have the power to delay the election. For a textualist the answer should be no, as Article 2, Section1, clause 4 gives Congress the power to set the date of the election”

                Can you please post the relevant language that you are citing?

        2. This is an idiotic line reasoning, even for you. Are you seriously this moronic?

          1. “Signs point to Yes.”

          2. It always pushes the party line, so apparently yes.

          3. Didn’t referring to Schumer Pelosi and Biden as ‘3 moderates’ tip you off?
            …although i’ll grant that he is not a moron, but he is certainly irredeemably dishonest in his line of reasoning and/or argumentation

    2. Mod 4 fucking ever: Is English your second language? That would explain a lot.

  11. The progressive Democrats want to pack the court. For them, raw power, at any cost, by any means, is the name of the game. The older, fading contingent of Democrats understand that, in the long term, packing the court is a maneuver that may end up costing the entire party the very power they are seeking to consolidate.

    Biden’s waffling, transparently stupid as it is, satisfies both groups. However, the progressives are the future of the party. For this reason, Biden’s position is ultimately irrelevant to Democrats. In the event Biden wins the presidency, he will be a transitionary figurehead. His opinion does not matter to his supporters.

    1. ah,….California calling… says you are wrong in thinking it may end up costing the party the power they seek. in conjunction with the supremes and other measures [statehood for DC, PR] they intend to sew up absolute one party status BEFORE any course correction is possible.

  12. his policy preferences
    Ahem! Policy orientation is the proper term.

  13. “His unwillingness to discuss the issue should alarm anyone who values judicial independence as a bulwark against the abuse of power”

    I think that ship has sailed long ago. The appointment of judges to the supreme court is purely a partisan affair without even a pretense of independence.

    1. That explains those republicans who confirmed Kagan and Sotamayor.

      1. Back when the senate was appointed, (about 100 years ago) I suppose it was not such a partisan affair as it has become.

    2. It’s purely a partisan affair for democrats. Most non democrats want an originality. As there are two ways to view the constitution. Originality, and wrong.

  14. Their refusal to indicate that they are against court packing (adding more than nine justices instead of simply replacing justices when they retire or die) is implying that they are willing to pack the court.

    This is a really good reason to not vote for Biden. Not a very good reason to vote for Trump however. I will be voting for Jo Jorgensen instead of the two septuagenarians who are out of touch.

  15. Court packing IS a supremely bad idea, and it’s odd that a number never made it into the Constitution. Maybe it’s time for an amendment?

    Anyway, if the Democrat decides to pack two more people into the court, to give him a *partisan* advantage, then the next Republican adds two more, and the Democrat after that two more, and the Republican after that two more. But there’s not a clear *partisan* advantage by that point, so the Democrat after that adds four more, then the republican after that six more, and so on.

    Notice I say “partisan advantage”. That’s because both Democrats and Republicans want the courts to be partisan. They want parties on the bench in a system that never originally had parties. I want court justices to be independent of the cigar smoking party bosses. These are not elected positions. Keep parties out of it.

    1. The founders clearly did not foresee a group so homogeneously malignant and tyrannical as the modern democrat party. Even after throwing off British oppression.

    2. Court packing is a one-way ticket to a Supreme Court consisting of hundreds of judges who will nakedly vote on issues of public policy without rendering formal decisions and without any legal reasoning.

      “By a 154-132 vote, the Supreme Court has struck down …..”

      1. Sounds good to me. Many justices are harder to manage by rightwing plutocrats than few justices.

        1. Of course you’re for the wrong thing Tony. You’re evil.

        2. I do not see anything good or preferable about a Supreme Court acting as an unelected legislature that dispenses rulings by virtue of a political popularity contest entirely devoid of neutral legal reasoning.

          1. Me either, but since that’s exactly what Mitch MCConnell has done to the judiciary, more judges is better than fewer. Any constitutionalist would be as neutral on the issue as the constitution is, obviously.

            1. I do not follow at all.

              Your response makes no sense.

      2. Then all that needs be done is legislating a cull of the supreme court Much like states do to control animal populations when necessary. Sort of a The Purge meets Animal Control where every citizen is guaranteed immunity from various laws that would otherwise be a deterrent to ‘offing’ judges until sustainable number of judges is achieved.

  16. his answer is due to two sleazy politician standards…….. one, there are people who are going to vote for him because they want him to pack the court. two, there are people who would not vote for him if he said he would pack the court. what he will end up doing will be determined at a later date based on whether or not he thinks he can get away with it.

  17. As much as Biden’s refusal to say is disturbing, it’s not like anybody at all doesn’t know his position.

  18. So let’s review the more alarming threat to our republic.

    One candidate will or will not commit to adding justices to the Supreme Court, something that has been done before and is not unconstitutional. This terrifies Sullum.

    The other candidate wants to indict and prosecute his opponent and the last President, and he has asked his AG to do so, when neither has been charged with anything. Trump just doesn’t like them, because they oppose him. To Sullum, nothing here at all.

    One event is already part of our history, the other is the stuff of dictatorships and fascists.

    It’s clear where Sullum stands.

    1. He wants to prosecute them for a litany of crimes of which they are almost certainly guilty. That they are his political opponents is not a defense against said crimes.

      1. Hmm, reminds me that Hillary, who I’m no fan of, submitted to 11 hours of hearings about her “crimes.” They couldn’t find any and you know they couldn’t with how partisan they were. Not to mention, Trump and co. gleefully use personal cell phones for official business, etc.

        Face it- you’re a partisan stooge who has no connection to reality because you can’t see your glaring hypocrisy.

        1. “Hmm, reminds me that Hillary, who I’m no fan of, submitted to 11 hours of hearings about her “crimes.” They couldn’t find any and you know they couldn’t with how partisan they were.”

          Yep, setting up a comm network to avoid the FOIA, and screwing with subpoenaed evidence: Not crimes at all.
          Face it – you’re a fucking lefty piece of shit.

        2. ‘Face it- you’re a partisan stooge who has no connection to reality because you can’t see your glaring hypocrisy.’

          Pot, kettle, black. Your assertion about ‘being no fan of Hillary’ seems unlikely, given you bringing her up with your whataboutism attempt. The ’11 hours’ comment is a weak red herring, but one doesn’t expect much from you, certainly not an acceptance of current events that are counter to in-group biases. The hearings she ‘submitted to’ had nothing to do with the current information or state of any investigation. If Hillary and/or former POTUS Obama are responsible for spying on, running a disinformation campaign to discredit a candidate and alter the outcome of an election, then continuing to use the disinformation campaign to attack a sitting president, then both deserve to be charged, tried, and if found guilty, imprisoned for the longest period possible under law. If it comes out that Trump is guilty of criminal wrongdoing, then I have the same opinion about him. As of now, the latter is not the case, the former is a strong possibility.

        3. I’m really not. That Hillary wasn’t prosecuted doesn’t make her innocent of anything. We all know for a fact that she was guilty national security violations, and so much more.

          But would never hold your masters accountable.

    2. Thanks for saying what I came to say. Bunch of pearl clutching about a milquetoast Dem candidate while Trump is tearing at the walls of most any institution.

      1. Its amazing to me that a President who wants to arrest his opponents on a whim, who has said if he loses the election is corrupt, and who is $400M dollars in debt nd has already used his position for personal gain gets not a mention here on this site anywhere. Crickets.

        But when Obama said “You didn’t build that,” there hair caught fire. Just like it is with no answer from Biden on something the country has done before, legally.

        It really says a lot about the writers here.

        1. If you think that’s bad, you should listen to the nitpicks of our resident trolls.

        2. “Its amazing to me that a President who wants to arrest his opponents on a whim,..”

          You.
          Are.
          Still.
          Full.
          Of.
          Shit.
          Oh and one of these days, please tell us how the chant ‘fight climate change’ makes those nasty wildfires go away.

      2. >>Trump is tearing at the walls of most any institution.

        you say this like it’s a bad thing.

        1. On an ostensibly libertarian comment board, no less.

    3. I’m sorry, but I don’t really respond to “Leave Hillary alone!”

    4. “…Trump just doesn’t like them, because they oppose him…”

      You.
      Are.
      Still.
      Full.
      Of.
      Shit.
      Oh and one of these days, please tell us how the chant ‘fight climate change’ makes those nasty wildfires go away.

      1. Open wider, Sevo.

        #ThreeWeeks

        #ThreeMonths

        #TheReckoning

        You will comply, clinger.

  19. not alarming if one has any fucking clue what’s up in the world

  20. When they’re being honest, democrats tell me that the court doesn’t represent what the majority of the people want, so of course they want to pack the courts.

    How well any given judge interprets the constitution isn’t the point.

    1. And conservatives aren’t packing the court by padding it with far right religious extremists? GMAFB

      1. Weird. Republican president representing conservative constituency doesn’t feel the need to put radical left wing activist judges into position to destroy our republic.

        It’s almost like Trump does what he was put there to do, not what his enemies want. I understand that this is confusing after 30 years of neocons capitulating on every issue.

  21. If Biden wins, I hope he does try to pack the court. The backlash would be spectacular!

    1. It already has been. This *is* the backlash.

      This is Biden’s being found legally culpable, but not criminally guilty.

  22. For all the things that make the media’s heads explode, the presidential nominee of the most powerful political party in the USA says “I don’t want news stories about my actual policy position on this,” and they don’t blink an eye.

    1. Are you surprised? The vast majority of ‘journalists’ are opinion piece writers, running dogs after salacious quotes and soundbites to distort for clicks, likes, follows. It’s not ‘if it bleeds, it leads’ any longer, it’s ‘if it outrages, it leads.’ My guess is if Biden wanted to give an interview, and it hinged on the reporter being on all fours and rolling over to allow Handsy to scratch it’s belly, the interview would be a go. I will admit to being a misanthrope though, so, biased.

  23. Yet evidently it is not big enough for their candidate to tell voters whether he favors expanding the Court to accommodate his policy preferences.

    It speaks volumes when days after RBG’s death, SCOTUS nominations was supposed to be a rallying cry, and the party subsequently went full-retard and turned it up to 11, that the same message can’t even get traction on their own stage.

    I need to clear out some of the 2016 vintage in my proggy tears cellar to make room for the 2020 vintage.

  24. Biden has no opinion because he is a sock puppet. All the hysterical hand wringing over court packing is ridiculous. It will never, ever happen.

    1. It depends. If Biden wins in a landslide and dems pick up 10 senate seats, they will think they have a mandate and jump right in at the far left deep end. Court packing would be a good strategy for them because the prog justices will be around for a long time even after the dems are voted out. If the election is very close and they have a slim or no majority, nothing will change.

      1. The Dems will have a blue wave and the filibuster is dead. They have an agenda and not long to pass it. They will stack the supreme court with 3 more far left members also to counteract the religious conservative super majority that the Supreme Court now has. You may not like it, but that’s what’s coming and it will make for all kinds of lively discussions.

  25. Only Republicans are allowed to tamper with institutions to increase their undemocratic power. Republicans insist on this repeatedly, and they know best.

    Charlie Kirk and some of his vile conservative friends were caught on tape advocating ballot harvesting in churches, saying they must do everything they can to fix the election because the left is “evil” and must be defeated. Conservatives don’t even pretend to care about democracy anymore, and that’s why instead of moderating their positions to appeal to 50%+1 in elections, they stack courts with barely competent ideological puppets. As long as Democrats are working on behalf of the people instead of whiny oligarchic interests, a mere statute governing the number of justices is hardly holy writ. Perhaps after they’re done cleaning up yet another Republican disaster (this time with a quarter million American lives lost), they can get on restoring some democracy to our democracy. If Republicans want to win elections and govern, surely we all agree that their first mission must be actually appealing to the people they want to govern.

    1. We’re not a democracy Tony. We’re a constitutional republic. I know this confuses you.

      1. And what do you think that supposed distinction means?

      2. We’re a Democratic Republic as defined by the founders. They considered both democracy AND individual rights important so they invented a Democratic Republic. You may not like that but it’s well understood and a historical fact.

    2. It’s funny how the lockdowns didn’t cause any economic downturn because people took precautionary measures in the free market, but also every single COVID death is the fault of republicans.

      It’s almost as if we start from a place of “How to we blame republicans?” and work backward. Gee: how progressive.

      1. I’d say every single death beyond what the amount of death that would be proportional to another similar country. Say, Canada. Policy has effects, even dumb policy enacted by dumb people.

        1. I’m surprised you say that, considering that most COVID is at the state level, and the death rate of blue states are so much worse than red states.

          Dumb policy by dumb people?

          1. Even you are better than this partisan whoring lie.

            You’re just a spittle spray of talking points. You barely even know what you’re saying.

            1. You’re entitled to your own opinions, but you’re not entitled to your own facts.

              Even when trying to blame it all on Trump, Vox can’t help but concede that red states are handling the pandemic about twice as good as blue states:Overall, blue states fare worse with a death rate of 74 per 100,000 people, but red states still have a relatively high death rate, by global standards, of 49 per 100,000.

              1. And data shows that masks and lockdowns reduce infections by as much as 75%. The hack part is you trying somehow to blame progressive ideology for more deaths, which isn’t explained. What is explainable is that progressives live in more densely populated areas. It’s no surprise that New York got hit the hardest, being the most densely populated place in the country.

                1. Those are very interesting excuses, but the fact is blue states have a higher death rate from COVID than red states.

                  Do you ever wonder why you didn’t know that? Here you are, the informed progressive in the room, setting benchmarks for good policy. Yet, when confronted by the results of the very statistic you claim is so important, you think the results are a lie?

                  Do you ever question why that is? You already know that red states are poorer than blue states. You already know that red states receive more federal funding than blue states. But, in the midst of an historic pandemic, hundreds of thousands of people dead, and all the media you consume, you’re shocked when confronting the basic statistics of what’s going on in this country?

                  It’s really interesting.

                  1. What makes a blue state is having more dense population centers. Logically that also means more contagion spread. Meanwhile New York was doing better as red states were exploding with cases later in the process after the outbreak began in the population centers. If you have some hypothesis about how progressive politics, which takes the virus seriously, and conservative politics which does not, has led to these outcomes, I’m all ears. It’s not like Texas and Florida are going gangbusters. Or even small states like Mississippi.

                    1. My hypothesis is that blue states are more dangerous than red states during the pandemic, and people should plan accordingly.

                      “If you have some hypothesis about how progressive politics, which takes the virus seriously, and conservative politics which does not, has led to these outcomes, I’m all ears.”

                      That’s begging the question of how effective the policies are at actually accomplishing anything. According to the numbers, they don’t seem that effective. A better policy would simply involve driving away from blue states. It would be much safer.

                    2. Anyway, I’m not the one urging us to take death rate as the ultimate evaluation of good policy here. I’m just showing you what that data says. If you want to change your mind about how we evaluate this. OK. But the “explain how my favorite policies aren’t working despite their worse outcomes” conversation is pointless and boring.

  26. Well maybe they should pass an amendment to set the number of SCOTUS judges at 9. With Trump turning the court into a far right super majority that will always rule for religious conservatives he opened up the gateway for the Dems adding 3 more far left judges. Next couple of election cycles will be very interesting.

    1. The last elections that mattered brought up to 3 right leaning judges. Democrats know they couldn’t pass any amendment, but the reality is that they don’t have to. All the have to do is pack the senate.

  27. Biden is on borrowed time. This makes him a dangerous man. The DNC backed him from the beginning for a reason. He sold his soul to them for another crack at the Oval Office before he croaks. He will the the bidding of the DNC if elected: gun control and court packing will be right around the corner.

    1. If only the DNC were as powerful as the far right and far left hysterically rant that it is.

  28. An opportunistic declining mediocrity like Biden will do exactly what he’s told if the mob-rule wing of the Democrat party gangs up on him.

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  31. But where’s the evidence it’s unpopular with voters today? Anything, absolutely anything, goes these days when it comes to pure power grabs. I could easily see Biden, with a bare Democrat majority in the Senate, adding four justices in the first year of his presidency. Republicans haven’t won a majority of the popular vote in sixteen years. Mob rule is all that matters. Yippee.

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