Don’t Pack the Court; Correct the Court
Justice Amy Barrett was Mitch’s Ace. But Joe Biden holds all the other cards.
Justice Amy Barrett is being sworn in. But Joe Biden should not expand the Court. He should correct the Court.
It is one of the worst things that can be done to America for an incoming administration to politicize the courts. Joe Biden and Kamala Harris are likely to be faced with this temptation: there is every probability they will control the Presidency, the Senate and the House of Representatives. Strange things are afoot; one might call it the reverse of 2016’s “dark posts” and voter suppression by the Trump campaign. Instead of voter suppression, we are seeing, in the early vote numbers, extraordinary voter enthusiasm, including among groups of voters who never voted before. Young people did not turn out for Bernie Sanders in the primary but boy, are they turning out for Joe Biden in the general.
But, difficult though it may be, let us wrench our eyes away from the coming Biden-Harris landslide, because a landslide is what it will be. Let’s consider the courts. As I write, Amy Coney Barrett is preparing to be sworn in at the White House as a Supreme Court Justice. Her nomination got all the attention and speed that Merrick Garland’s did not get.
What, then, should Joe Biden do?
The answer is not as simple as it may seem to some partisan Dems. For a start, Amy Coney Barrett is not as hated in the country as Donald Trump is. Her approval rating is higher than his. There are many voters who dislike Donald Trump, and won’t vote for him, per the polls, but who do approve of Amy Coney Barrett. Clearly, Joe Biden declaring his intention to, let us theorize, ‘pack the court’ with, let’s say, five new seats, would not be worth it.
The simplest thing for Biden and Harris to do would be to announce they do not intend to alter the court, but they are going to reverse Republican gerrymandering - this is not about the quality of the Justice, but the fairness of the process. In this case, that would require the appointment of two new justices. Justice Gorsuch took the seat nominated by Obama, so one seat should be created to counter that, because Gorsuch cannot be “deducted”. Then, if Barrett is a legit nomination, so was Garland - Mitch McConnell can’t have it both ways. A second seat should be created for the Garland nomination. This would leave the court at 11 and not disturb Trump’s legitimate right to appoint Barrett and Kavanaugh; rather, it would effectively neutralize Gorsuch and “replace” the Justice who should have been sat in his place.
Awesome, I hear you cry. What’s the problem?
The problem is that Joe Biden has said that he will tell the public what he plans to do about “court packing” basically now - after Barrett is sworn in but before the election. He said this because he knows that the public do not like the idea of court-packing, or even court-correcting. And that to announce that he will right Moscow Mitch’s wrong would play into the latter’s hands.
It was once said in politics “It’s the economy, stupid.” Joe Biden, political veteran, might amend this to “It’s the Oval Office, stupid.” Everything flows from Biden winning the Presidency. He should - indeed it’s his duty - to do nothing to endanger his forthcoming victory. Getting Trump out of office is job number one, two, three, four and five.
If Biden announces a “Court Correction” he will have done internal polling that tells him the election is not in danger. If not, his better bet may be to say something along the lines of “I have no immediate plans to alter the Supreme Court. This is never something that should be a football for politicians. Instead, I will establish a bipartisan advisory committee to examine the entire process of Supreme Court nominations. We need to get away from the partisan division and games in Congress. I will ask them for recommendations on reform, and work with both parties in the next Senate in order to return Supreme Court nominations to a bipartisan consensus, as far as possible.”
This would be smart politics. It would establish Biden as one who does not act in anger or in haste. It would not bind him to any decision, and it would leave it open to his administration to expand the Court if the new Justice Barrett and her colleagues, for example, vote, just after the election, to take away our healthcare.
Mitch McConnell has played his Ace. The rest of the deck is now in the hands of the Democrats.