Why Joe Biden must tell us his stance on Court Packing

We are weeks away from the 2020 Presidential Election and just as important as the nomination of Judge Amy Coney Barrett is how a potential Joe Biden Administration would react to her appointment. We have now seen one Presidential debate and the only Vice Presidential debate come and go and we still do not have an answer. It is time for former Vice President Joe Biden to tell the American people where he stands on court packing.

Article III, Section I of the United States Constitution states that the power of the judiciary “shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” This is the only direction that dictates the Supreme Court in the United States Constitution. The entire Federal Judiciary could be vested in one person just so long as that one person represents the “Supreme Court” if Congress says so.

Initially, Congress created a six-person Supreme Court, and between our country’s founding and 1869 the size of the court fluctuated between five and ten justices. Then in 1869, the Supreme Court went to nine members and has stayed that size since. Since 1869, there has only been one major threat to the size of the Supreme Court when in 1937 President Franklin D. Roosevelt promoted legislation to expand the size of the Court after his New Deal policies kept being declared unconstitutional. His proposal, to add a new justice every time one reached the age of 70 years and 6 months and refused to retire, could have expanded the Court to 15 members. Yet, his plan failed despite having more than a three-fourths majority in both chambers of Congress. Since then, no one has been brazen enough to even consider such a plan until now.

On two debate stages, neither Vice President Biden nor his running mate, California Senator Kamala Harris, would answer the simple question, if elected will you support packing the court? Then, on a campaign trip in Arizona, Joe Biden stated that we would know what his opinion on court packing is “when the election is over.”  His reason for refusing to answer the question is fear that this would be a headline. All of which leads me to believe that this is being considered as an option. This is concerning to say the least, and for my vote, it’s a non-starter.

Joe Biden wants the Supreme Court on the ballot “to let the American people decide”. How can we do that unless he actually tells the American people his plan? There are many reasons Americans claim to dislike President Donald Trump, but his release of a list of potential Supreme Court justice nominees to let the American people vet beforehand was a great move; Joe Biden has refused to even state the type of judge he would nominate.

Now, Joe Biden has a long history with Supreme Court nominations as the former chairman of the Judiciary Committee from 1987-1995 and he served as ranking member from 1981-1987 and 1995-1997. During his time as chair, his reprehensible actions helped lead us to the position where judicial nominations are now more political circus than anything else. He permitted esteemed judges like Robert Bork and Clarence Thomas to get railroaded by personal attacks. Something the now Justice Thomas stated was nothing more than “a high-tech lynching” meanwhile the term to “Bork” someone lives on with the meaning “to obstruct (someone, especially a candidate for public office) through systematic defamation or vilification.” The same person who harmed the reputation of the highest court in the land refusing to tell us if he is willing to do it again is unacceptable.

Let me be very clear, Joe Biden has caused enough damage to the Supreme Court. If he supports, justifies, or even implies, as he is doing now, that court packing is a valid strategy to rebalance the court to a majority of judicial activists then he should not be rewarded with a chance to do more harm. If he starts changing the numbers of justices to force through his litigation he will undermine the trust the American public has in the Court and would call into question the legitimacy of every decision that the Court makes. Not to mention, such a move would be immediately retaliated against. Just like Democratic Senator Majority Leader Harry Reid going “nuclear” in 2013, if the Democratic Party stacks the Court, when Republicans take power back, what would stop them from doing the same?

It is unlikely that any party will ever have the same power that Franklin Roosevelt had in 1937. Nearly anything he wanted would become law and there was only the Supreme Court to stop him. Yet, not even President Roosevelt could get court packing through Congress. As Joe Biden said, he “is the Democratic Party” and whatever he says will be the position the party takes. He needs to tell us if the Democratic Party is going to support this radical move. And if he does support it, we must reject him before he has a chance to Biden-Up (meaning to harm the legitimacy of) the Supreme Court even more.

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