To pack or not to pack?
That is the question everyone has been asking Democratic presidential candidate Joseph R. Biden regarding his plans for the Supreme Court should he be elected president.
And Biden has come up with a unique answer: I’m not going to tell you.
In an interview with a Las Vegas reporter Friday, the former vice president said: “This is the number one thing that I’ve been asked about from viewers in the past couple of days.”
“Well, sir, don’t the voters deserve to know?” KTNV reporter Ross DiMattei asked.
“No, they don’t,” Biden answered, then said about President Trump, “I’m not gonna play his game, he’d love me to talk about. And I’ve already said something on court-packing, he’d love that to be the discussion instead of what he’s doing now.”
What Trump is “doing now” is filling a Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg. And for the record, it’s exactly what Democrats would be doing if they held the White House and controlled the Senate.
Upon the expected confirmation of Trump’s nominee Amy Coney Barrett, the court’s balance will shift to 6-3 in the number of justices appointed by Republican versus Democratic presidents. Angry Democrats have floated the idea of “packing the court,” meaning if they take control of the Senate and the White House, they’ll simply add more justices to America’s highest court.
Trump this week said Biden has “zero chance” of resisting fellow Democrats who want to pack the court, adding that they clearly did not learn the lesson of President Franklin Delano Roosevelt, who sought to pack the court in the 1930s in an attempt to get new justices who would support his New Deal.
“FDR’s own party told him you cannot PACK the United States Supreme Court, it would permanently destroy the Court,” Trump wrote Sunday on Twitter. “But now the Radical Left Democrats are pushing Biden to do this. He has zero chance against them!”
For background, in 1937, according to History.com: “Largely seen as a political ploy to change the court for favorable rulings on New Deal legislation, the Judicial Procedures Reform Bill of 1937, commonly referred to as the ‘court-packing plan,’ was Roosevelt’s attempt to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.”
Both the justices and top Democratic lawmakers opposed FDR’s proposal, and Congress never held a formal vote on the issue, despite overwhelming Democratic majorities in both chambers.
The Constitution set up America’s high court but did not establish how many justices it should have, leaving that up to Congress. The Judiciary Act of 1789 put the number at six; that number rose to seven in 1807 and to nine in 1837. The number rose to 10 in 1863, then dropped back down to seven in 1866. In 1869, Congress raised the number of justices to nine, where it has stood ever since.
In a 2005 speech on the Senate floor, Biden vehemently opposed the idea of packing the Supreme Court as an outrageous “power grab,” specifically addressing the FDR debacle.
“It took an act of courage on the part of his own party to stand up institutionally to stand up against this power grab,” Biden said then.
The Delaware senator went on to say that FDR was “corrupted by power in my view,” and that his court packing plan served as a reminder of how “power corrupts and absolute power corrupts absolutely.”
And the late Justice Ginsburg, whose former seat Judge Barrett hopes to fill, told NPR in 2019: “Nine seems to be a good number. It’s been that way for a long time, I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
Still, Biden refuses to say what he’ll do, saying Thursday that voters will “know my opinion on court-packing when the election is over.” And again Saturday, Biden refused to divulge his opinion, saying, “Look, the only court packing is going on right now. It’s going on with the Republicans packing the court now.”
On Tuesday, he dodged the question again, saying, “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.”
Along the way, Biden has even said “it’s not constitutional” for Republicans to fill Justice Ginsburg’s vacant seat.
And that right there is scary.
While he’s clearly playing politics, one could argue that Biden doesn’t understand that the president nominates replacements to the Supreme Court and the Senate is there to “advise and consent.”
Biden, who served for 36 years in the Senate, ought to know that by now.
It makes you wonder, what else does he not yet know?
*Joseph Curl covered the White House for a dozen years and ran the Drudge Report for four years. He can be reached at [email protected] and on Twitter at @JosephCurl. A version of this article ran previously in The Washington Times.