Don't be fooled: Biden did not say he won't pack the Court
The headlines in today's news all said something along the lines of "Biden says he's not a fan of court-packing." The implication was clear: all those conservatives saying a Biden and Harris administration will destroy America as we know it by turning the Supreme Court into an unelected Democrat super-legislature need to stand down. It's not going to happen. However, if you pay careful attention to what Biden said, he didn't condemn actual court-packing at all. He either used Orwellian words to condemn a conservative justice joining the Supreme Court or gave a weak opinion, not a statement of intent.
I've been one of many conservative writers warning that, if the White House and Senate go to the Democrats, court-packing — that is, increasing the number of justices on the Supreme Court — is guaranteed. That change to the Court will have terrible consequences for America. (See here, here, here, and here.)
Democrats will swiftly move to enact every agenda item that most Americans have rejected, and they'll cement those changes with a so-called Supreme Court that's nothing more than a rubber stamp. Moreover, because one of those changes will involve adding two new Democrat-majority states (D.C. and Puerto Rico), America will be in for a long run of one-party rule.
For these reasons, you can bet your bottom dollar that, if Biden wins and the Democrats gain the majority in Senate, court-packing will be a done deal.
I hear someone in the back yelling, "But Biden just said he's not a fan of court-packing."
To which I answer, "No, it's not even clear he's talking about true court-packing when he says he's 'not a fan.' And even if he is using the phrase correctly, that weak answer does not mean he won't pack the Court if he is 'forced into it' by those evil Republicans having seated the doubly evil ACB. He just wants you to know he'll feel bad about eviscerating our Republic while he's doing it."
Biden's latest squirrely pronouncements on court-packing occurred during an interview with WLWT-TV in Cincinnati, Ohio. The interviewer, Kyle Inskeep, carefully explained what packing the court means: "But what about for undecided voters who want to know your position on possibly expanding the Court before they cast their ballot?"
Here's Biden's answer interspersed with my commentary. You can see the video here:
Well, look, what I want them to focus on, as I'd respectfully suggest, is what ... court-packing is going on now.
Notice how Biden shifts the definition. By defining court-packing to mean adding Amy Coney Barrett to the Supreme Court, Biden is using the Democrats' Orwellian definition of the term — that is, they define court-packing to mean filling the existing nine seats with justices Democrats don't like.
Never before, when an election has already begun, and millions of votes already cast, has it even been that a Supreme Court nominee was put forward, had never happened before.
Early voting is not in the Constitution and is new to the American political scene. By definition, then, Biden is correct that this situation never occurred before. However, those voters who chose to vote early assumed the risk that events would occur that might later make them regret that early vote. Their choices are not a reason to turn away from the Constitution's simple rules for nominating and confirming a new Supreme Court justice.
One of the reasons is the Constitution implies that the only shot the American people get to determine who will be on a lifetime appointment on the Supreme Court or federal courts is when they pick their senator and their president because the president names and the Senate advises and consents.
Voters made their choices in 2016, when they handed the White House and the Senate to Republicans. They reaffirmed that choice in 2018, when they kept the Senate in Republican hands. They knew when they voted that their choice would be in effect until January 2021, when the Senate and White House change hands. Those voters get the benefit of the full four-year term.
As for precedent, the most important Supreme Court justice of them all, Chief Justice John Marshall, who shaped the Supreme Court into the powerful entity it is now, was an under-the-wire nominee. John Adams appointed him in 1800, in the waning hours of his administration, to thwart Thomas Jefferson's anti-federalist plans.
That's the focus. I've already spoken on ... I'm not a fan of court-packing, but I don't want to get off on that whole issue.
I claim that, when Biden speaks of court-packing here, the context shows that he's saying he's not a fan of the Barrett hearing, even though it has some of the finest precedents in American history. Alternatively, even if Biden is using the phrase "court-packing" correctly, saying weakly, "I'm not a fan," is not the same as "No, I will not sign off any legislation seeking to increase the number of justices sitting on the United States Supreme Court."
In other words, Biden has still refused to answer the most crucial question in this election: if he wins and gets a Democrat Senate, will he sign off on adding enough activist justices (i.e., those who decide on policy and then mangle the Constitution for appearance's sake) to create a Democrat super-legislature?
Image: Biden still won't answer about court-packing. WKRC Local 12 video screen grab.