Joe Biden

Biden Partly Clarifies Position on Court-Packing - And Perhaps Opens Door to Possible Deal

Republican senators should leap at this opportunity - though, sadly, I doubt they will.



Democratic presidential candidate Joe Biden.


Since the death of Supreme Court Justice Ruth Bader Ginsburg and Donald Trump's nomination of Amy Coney Barrett to fill her seat, Democratic presidential candidate Joe Biden has repeatedly refused to clarify whether he plans to try to pack the Court in retaliation. The most he would say is that he's "not a fan" of the idea, referencing his earlier much stronger statements against it. In tonight's televised town hall event, however, Biden promised to take a position on the issue before the election, and also potentially opened the door to a deal on it:

Critics of the idea refer to it as "packing the court," and Biden has said previously in his presidential campaign that he is "not a fan" of the idea.

Biden initially repeated that line on Thursday during a town hall event hosted by ABC, but after moderator George Stephanopoulos pressed him, the former vice president went further.

Biden said his position on whether to add seats to the Supreme Court would depend heavily on how Republicans handled the current confirmation process for Judge Amy Coney Barrett to fill the seat left open by the death of Justice Ruth Bader Ginsburg….

Biden said he was looking to see whether "there's actually real live debate on the floor, if people are really going to be able to have time to go through this" process thoroughly.

His position on adding justices, he said "depends on how much [Senate Republicans] rush this."

"If they vote [on Barrett's nomination] before the election, you are open to expanding the court?" Stephanopoulos asked.

"I'm open to considering what happens from that point on," Biden replied.

"But don't voters have a right to know" your position on this, Stephanopoulos responded.

"They do and they have a right to know where I stand before they vote," said Biden.

"So, you'll come out with a clear position before Election Day?" Stephanopoulos shot back.

"Yes," Biden said. "It depends on how they handle this."

It's good that Biden has decided he must clarify his position before the election. But more importantly, he seemed to indicate he would come out against court packing so long as the Senate holds a "real" debate on Barrett. Notice that he did not say his opposition to court-packing is contingent on the Senate defeating the Barrett nomination, or even holding it in abeyance until such time as the winner of the election is known and can decide whether to go forward with this pick (as per the deal I proposed a few weeks ago). At this point, all he seems to ask for is a "real" debate that enables "thorough" consideration of the nomination.

If so, I say give the man what he wants! GOP senators should reach out to Biden and ask him what he means by a "real" debate. If it's anything even remotely plausible, they should go ahead and do it.

It's possible, of course, that Biden just misspoke (though I doubt it), or that he will decide to walk back his position. It could be he really means to endorse something like my earlier proposal, which I am still happy to support, but for which there might not be sufficient backing from Republican senators. But it can't hurt to explore every possible avenue to avoid the menace of court-packing. A Senate debate tailored to Biden's specifications (whatever they might be) is a very small price to pay.

It's entirely possible that Biden genuinely wants to avoid court-packing and would like a face-saving way to take the issue off the table. Earlier in the campaign, he rightly explained that he opposes it because it would predictably be met with destructive retaliation in kind: "We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all." Back in 2005, Biden denounced FDR's 1937 court-packing plan as a dangerous "power grab," which showed the "corruption" of one of his party's most iconic presidents. That doesn't sound like a man with a great desire to blow up the Court. In addition, Biden likely knows court-packing is unpopular, and might prefer to avoid the political risk of supporting it, and instead spend his political capital on other issues.

Sadly, I'm not optimistic that Republican senators will even try to pursue this possibility. They- and Donald Trump - might prefer to keep the court-packing issue on the table in an effort to save their own political hides in what increasing looks like it's going to be a very bad election for the GOP.

On the upside, however, a deal of this kind doesn't necessarily require support from Trump or even Senate Majority Leader Mitch McConnell. As with my previous proposal, all it requires is the backing of a handful of key GOP senators (no more than four) - enough to hold up the vote  on Barrett until McConnell agrees to grant Biden's demand for a "real debate." Such people could include Susan Collins and Lisa Murkowski (who already oppose holding the vote at this time), Mitt Romney (who is on the outs with Trump anyway), and perhaps Ben Sasse (who just denounced Trump on a variety of issues).  These people have little to lose from breaking with Trump on the issue,  and can potentially save the nation from the risk of court-packing at very little cost to themselves.

Of course none of this is necessary from the standpoint of those who actually welcome court packing, or at least see it as justifiable payback for various Republican sins. As I've noted before, Democrats are right to point out that GOP senators are acting in contravention of their own supposed principles announced in 2016, and that a rushed confirmation process is a bad idea. But it's also the case that Democrats themselves are far from just innocent victims in the ongoing war over judicial nominations.

My objection to court-packing is not that Democrats have no legitimate grievances, but that it would be a major escalation of the conflict that threatens to destroy the institution of judicial review, in a way that more conventional skullduggery over judicial nominations does not. I outlined the reasons for that distinction in previous works on the subject, such as here, here, and here. In those same pieces, I also explained why preserving judicial review is an important goal even in situations where you don't like the politics and judicial philosophy of the current Supreme Court majority. And, for what it's worth, I made much the same arguments when a prominent conservative legal scholar proposed that Republicans pack the lower courts, back in 2017.

For reasons already noted, I think it is likely this potential opportunity to forestall court-packing will be lost for lack of trying. But I hope I might be wrong about that.

NEXT: D.C. Circuit Takes McGahn Case En Banc (Again)

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  1. Considering the Garland nomination and the pending Barrett nomination in pari materia, the Republicans have been playing Calvinball with the Supreme Court. Expanding the membership of the Court would be an appropriate response.

    1. Declining to confirm a nominee has never considered equivalent to court-packing until now. It's the dems who are playing Calivnball.

      1. The stated rationale for declining to fill the Scalia vacancy was that it occurred during an election year, and the voting public should choose who should make the nomination. When it came to the Ginsburg vacancy, that rationale was suddenly discarded.

        Calvin would be proud of Mitch McConnell.

        1. "The stated rationale for declining to fill the Scalia vacancy was that it occurred during an election year..."

          So what? Senators can confirm or refuse to confirm a nominee for whatever reason they want. Nobody considered refusing to confirm a nominee as court packing, until Barrett.

          1. The "so what" argument doesn't really work. There is nothing unconstitutional about expanding the court. Congress can expand the court "for whatever reason they want." The argument that doing something is okay because you "can" just supports court packing as equally ok. One can't suddenly decide that principles should intervene over raw power to act after waving them away. Somin's argument is better crafted. Otherwise we are left with "The Dems packed the Court!" Answer: So what?

            1. You are correct except that you are perpetrating a fallacy regarding degree. Not acting to fill a seat on the part of the Senate is much less serious an issue than changing the number of justices on the court. That's like shooting someone in the head for stepping on your foot (accidentally or otherwise).

          2. Great argument- "so what?"

            The equivalent of sticking your fingers in your ears and saying la la la.

            Republicans are hypocrites like usual and doing whatever they can to cement power. No one should be surprised or upset if the Dems respond in kind.

            1. You guys are so delusional it's amazing.

              29 times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. In every case, 29 out of 29 cases, the President made a nomination. 22 out of 44 Presidents have done this.

              10 of the times, opposition controlled the Senate. 9 out of 10 times, there was no confirmation since the Senate was controlled by the opposition.

              The other 19 times, President and Senate were same party. 17 out of 19 times the nominee was confirmed. And the 2 that weren't were special cases.


        2. Calvinball is ignoring the Constitution. Refusing to vote on Garland, who would have lost anyway, followed the Constitution.

          FDR trying to pack the court, and the Democrats nuking the filibuster and holding up nominations, was the closest either party came to Calvinball as far as the courts go, and those all followed the Constitution and were not Calvinball.

          1. That's not what Calvinball is. Just because your side now refuses to acknowledge them, that doesn't mean there aren't other rules than the Constitution.

            To whit: packing the court and ending the filibuster isn't against the Constitution, so why are you bent out of shape about it? Now look at Garland.

            Threatening court packing lead to compromise for FDR. The right isn't even considering that this time.

            1. No Threatening court packing killed Roosevelt's plans.

              "As Michael Parrish writes, "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. When the dust settled, FDR had suffered a humiliating political defeat at the hands of Chief Justice Hughes and the administration's Congressional opponents."

              1. What additional New Deal plans do you think FDR had that were stymied by a Court that kept being okay with them?

        3. To be fair, the Democrats were making the arguments about Garland that Republicans make now about Barrett. Both sides are openly hypocritical here.

  2. So what is a "real debate?"

    When all 100 Senators ride into the Senate seated on pink unicorns?

    Hard to believe that you are taken in by this blathering.

    1. "When all 100 Senators ride into the Senate seated on pink unicorns?"

      Yes, but it was the wrong shade of pink. So that wasn't "real debate." Court packing is on.

    2. It seems more likely to me that "real debate" in Biden's mind means voting her down regardless of credentials or actual, you know, debate.

  3. Barrett after Garland is an escalation. If the GOP jams the nomination thru days before an election, there will be a Democratic response. Sorry, but it's not Biden's job to prevent court expansion. By the time he takes office it's probably going to be too late. That ship will have sailed.

    Republicans have to decide. They're the ones who proclaim different rules for every new open SCOTUS seat. They have the choice right now, yes or no. It's their call.

    1. "Elections have consequences! Unless they're won by Republicans, who have a moral responsibility to unilaterally disarm."

      1. The point he's making is that you folks want the Dems to disarm.

        1. How about everybody disarm? How about stopping this insanity with warring tribes rather than differing approaches to the role and scope of government?

          What about taking the high road? There is nothing unconstitutional about the Barrett nomination. The only reason to oppose her nomination is political - you oppose her because you believe she will vote against policies you favor.

          What if we stopped assuming that justices vote with the party that nominated them? Roberts has certainly shown a willingness to go against Republican policy preferences. Gorsuch is also not a guaranteed vote. Why assume ACB is? The justices are not pawns of a particular political party.

          The idea that packing the court - thereby greatly damaging the country and the people who live here - is justified because Republicans moved forward with ACB is dangerous. This "by any means necessary" approach is disturbing.

          1. Also, Souter, a reliable liberal vote, was appointed by GHW Bush.

    2. How exactly will the ship have sailed? It will take legislation to expand the court that the President will have to sign.

      That means Biden is right in the middle of it if he's elected. He's on the ship.

      And you are wrong, republicans have been consistent. The president nominates, the Senate confirms. If they choose to do so. It is the democrats who make up new rules each year to satisfy their insane base of constituents.

      1. #13 Justices







      2. Sometimes Bad Is Bad : How exactly will the ship have sailed?

        Pelosi wanted no part of impeachment. She didn't think it would be a productive action. But with a transcript of Trump trying to extort personal gain for military aid, she didn't have a choice. Her caucus demanded it. The GOP may think, "Joe's a good guy. He'll let us get anyway with anything" You'll see that's no the case.

        Sometimes Bad Is Bad : And you are wrong, republicans have been consistent.

        Democrats don't care about your excuses for your hypocrisy. Barrett after Garland means a Democratic response. You can "prove" 2+2=Tuna Fish and that won't change.

    3. Republicans have to decide. They’re the ones who proclaim different rules for every new open SCOTUS seat.

      Like when that notorious Republican Franklin Delano Roosevelt tried to pack the court, and the Republicans Borked Reagan's nominee, and the Republicans nuked the filibuster for judges, then nuked it again for Supreme Court justices in retaliation.

      1. Judge Bork received a full hearing, a committee vote and a vote of the full senate on his nomination.

        1. Still complaining about Bork is a sign that you're dealing more with a talking point than a comment.

          1. Ditto Garland

            If Ginsburg had listened to Obama instead of her "slay queen" fans, you wouldn't be in this situation.

    4. grb, Garland was an escalation. Barrett after Garland was two escalations. Even playing tit for tat, you don't get two escalations.

  4. Court packing is needed by jews to undermine the host society with rabbinical courts under edicts of the Talmud. It is not left or right, it is jews v Christians. Pretty obvious what the game is.

    Now if we could just arrange open borders for a place called Israel, there will be justice for all.

  5. Overturning Roe will be great for Democrats but I guarantee you Kavanaugh, Roberts, and ACB will attempt to mitigate the damage to George P Bush by saying abortion in cases of rape and incest still fall under Roe’s protections. So just like Justice Kennedy bailed Republicans out by issuing a Papal decree that same sex marriage was a protected right just when it was about to be a good issue for Democrats...the 3 Bush loyalist justices will bail Bush out by not putting George P Bush in a position where he must take a stand on rape babies.

      1. Sorry, I apparently hit submit on an unfinished comment. Exempting cases of rape and incest would require mental gymnastics that would be untenable. I would anticipate an opinion of the Court, authored by Roberts, abandoning the reasoning of Roe and allowing the states to criminalize abortion at any stage of pregnancy.

        1. Especially "incest."

          An exception for rape would at least be logically tenable since it is premised on a lack of consent.

          But I think the court will avoid "overturning Roe" as much as possible and just whittle it down bit by bit.

  6. And Biden promises not to pull the football away.

    1. Exactly.

      The only kind of deal with the Democrats that can possibly fly is one where they deliver first, and the Republicans deliver second.

      Somin has plainly not discovered the concept of credit risk.

  7. I agree that a couple of weeks of debate with ample time for Democratic Senators to say what they want, and postponing the vote until after the election (but still this year), would be a very small price to pay for not packing the court, and well worth paying if it will allow Biden and the Democrats to save face.

  8. It's been decades since I've seen a considered, intelligent Congressional debate on anything. The vast majority is now just position statements couched as questions, rants unrelated to the subject, grandstanding for supporters, and demonstrations of complete ignorance. You might as well ask Santa for a pony this Christmas; you won't get that either.

  9. It is not often that anything Ilya writes has even a hint of humor but I had to laugh when I read this:

    "It's possible, of course, that Biden just misspoke (though I doubt it), or that he will decide to walk back his position."

    One thing Biden has been consistent about is his ability to misspeak.

    1. Yes, that struck me as funny, also, and goes to Somin's credibility, or lack thereof. I mean, Biden has publicly misspoken several times in THE LAST WEEK, including saying he was running for the Senate (again). There are multi-part video compilations of Biden's missteps. Wow, Ilya, what are your thinking?

  10. Not sure I understand. Is Biden saying that if Republicans hold a long debate, and then vote to confirm Barrett in a lame duck session, that's okay with Biden? Why wouldn't that just make Barrett's appointment look even more illegitimate?

  11. Joe Biden: "I will gladly pay you Tuesday for a hamburger today!"
    Ilya Somin: "That seems like an honest offer, trust him."

    1. Exactly. How can you have a deal with an irrevocable first step and no verification conditions? There is no way to hold them to this promise except to not put in a conservative judge (ie let them win so there is no reason to pack the court).

  12. Ilya,

    Court packing is an illegitimate destructive tactic that would destroy the fabric and independence of the courts, and ultimately the nation. Court packing would ultimately destroy every right guaranteed to the people in the Constitution.

    Threatening to use such tactics if a party doesn't get what they want is akin to terrorism, and terrorists should not be bargained with. Court packing should be condemned in the strongest possible language, and the mere threat of using it should be grounds for voting those members who suggest it out of power.

    Court packing would end in eliminating the Freedom of Speech, Freedom of Religion, Freedom of the Press, and ultimately the concept of Democracy itself.

    1. Explain how is it illegitimate in a way wherein the Garland run around is legitimate.

      1. I'll comment on the first half: imagine we're setting around the table writing a constitution. Someone says 'what's a good number for the SC?'. People suggest various numbers, but it is also pointed out that the needed number might vary depending on caseload or whatever. So everyone is leaning towards letting congress determine the number. And then someone (probably a programmer) in the habit of thinking about failure modes pipes up with 'But wait - what if the future habit becomes that every time control of congress shifts they add enough new justices to swing the court in a new direction?'. Remember here that one of the court's roles is precisely to act as a sea anchor, making it hard for congress to charge off in new and unconstitutional directions; that function is negated if each congress just installs a new simpatico court. My sense is that if you were at that meeting, at this point you would think 'that sounds bad, let's just hard code a fixed number and let them go through the hassle of an amendment if they want to change it'.

        (as to the second part, l'affaire Garland is scandalous not because Garland wasn't confirmed; it is scandalous because the '9 months is too close but 1 month isn't', *coming from the exact same players*, is scandalously hypocritical, even by the very low standards of congress.)

      2. Sarcastro - The Garland situation is nothing but in perfect keeping with the norm throughout US history.

    2. If Trump wins, I hope that liberal states secede. If Biden wins, I hope they pack the courts and conservative states secede. Then maybe we can have self-government. And then maybe have a discussion about common defense, common foreign policy, and free interstate trade.

  13. "But don't voters have a right to know" your position on this, Stephanopoulos responded.
    "They do and they have a right to know where I stand before they vote," said Biden.
    "So, you'll come out with a clear position before Election Day?" Stephanopoulos shot back.
    "Yes," Biden said. "It depends on how they handle this."

    Whatever happened to “millions of people are already voting” which was the argument by Democrats for why the Senate shouldn’t confirm ACB before Election Day?

  14. Yeah, Republicans, just do what we want now and we PROMISE we'll do something later, after we're elected, when you don't have the ability to hold us to it. That's obviously the best way to handle it.

  15. I heard Biden's town hall meeting. It sounded to me that he is fundamentally opposed to court packing but he would defer until after Barrett's situation is settled. Depending on how it goes will depend on what he decides. This gives me the impression if Amy Barrett is approved then he will consider that as an option but he is not going to tell until after most of the (earily) voting is over or about on Nov.1.

  16. I'll pocket a 6-3 GOP court of course but we have nothing to fear from court packing.

    A supreme court with less prestige is one with less legitimacy and ultimately less authority.

  17. I'm not sure letting a presidential nominee hold a confirmation hearing hostage is something we should encourage. "Do it my way, or else I pack the court."

    What happens when you give in to bullies? They push you harder. Does anyone really believe that Biden will decide against court packing if the Republicans agree to his terms? He would be under no obligation to do so. Furthermore, after he's elected, who cares what promises he made? He probably won't even serve one full term, let alone run for a second.

    It makes me truly uncomfortable that I consider voting against Trump because I believe that the violence in cities might dissipate with a Biden win. (This is not to say that I will be voting FOR Trump, just that we should not choose a president based on the likelihood of the losing side getting violent.)

    Political blackmail. Vote for Trump? We'll keep burning things down. Allow this nomination? We'll blow up SCOTUS. Trump is not someone who is easy to accept or defend, but this is a dangerous dynamic.

    That's a nice little Supreme Court you have there. Would be a shame if anything happened to it.

    Seriously, Ilya?

    1. This is what I don't get either. If there isn't some sort of rule of thumb that says, "Deals of the form 'you give me what I want today and I'll consider not doing something bad to you in the future' are bad deals and you should not take them" there probably ought to be.

  18. So your honor, could packing the court change the relationship between Congress and the court?

    Yes senator. If the number of Supreme Court Justices exceeds the number of members of Congress, then we could not all fit onto the floor of the house for the State of the Union Address.

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