Biden's Proposed Bipartisan Commission on Court Reform Could be a Hopeful Sign for Opponents of Court-Packing

Joe Biden. Joe Biden's gyrations on the issue of court-packing have been the focus of much attention in recent weeks. And for good reason: packing the Court would be a terrible idea likely to seriously damage the valuable institution of judicial review. In a recent CBS 60 Minutes interview, Biden proposed setting up a bipartisan commission on reforming federal courts: "If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack — the way in which it's being handled and it's not about court packing. There's a number of other things that our constitutional scholars have debated and I've looked to see what recommendations that commission might make." Biden continued: "There's a number of alternatives that are — go well beyond packing … The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations." The implications of this statement for court-packing are not immediately clear. But if Biden (assuming he wins the election) does go ahead with the the commission plan, on balance it would be a helpful development from the standpoint of those of us who oppose court-packing. Establishing a commission is the kind of thing presidents tend to do when they do not want to prioritize a given issue. History shows that a new president's best window of opportunity for dramatic new policies often comes within the first hundred days or so of a new administration. If Biden doesn't proceed with court-packing until the commission is appointed and completes its deliberations (which he says it would have 180 days to do), that would take us well past the initial honeymoon period when a new president's influence is at its height. Moreover, if Biden is serious about making the commission "bipartisan" and including both liberal and conservative legal scholars, then it is unlikely the commission would recommend any form of court-packing. With the exception of Charles Fried, I cannot think of any even remotely prominent conservative (or libertarian) legal scholars who supports court-packing. The issue is one that unites the legal right, but divides the left (where there are still a good many court-packing skeptics). Thus, any balanced commission would either reject court-packing or at least divide along ideological lines on the subject. If I'm right about the timing and composition of the commission, then Biden may be using the idea to sideline court packing and instead pursue reforms that have broader support, such as a constitutional amendment imposing term limits on Supreme Court justices which has widespread cross-ideological support among experts. That would be consistent with his own longstanding distaste for court-packing and with his statements in the 60 Minutes interview saying he wants the commission to make recommendations that are "not about court packing" and that he wants to avoid making the Court a "political football." Biden undoubtedly realizes court-packing would have exactly that effect (he has said as much in the past). He may also want to avoid court-packing because it is highly unpopular, and making it a major initiative of his administration would be a political risk. Biden may well prefer to spend his political capital on other objectives, that are more likely to be political winners. For all these reasons, unlike Josh Blackman, I am skeptical of claims that Biden wants to establish a commission so that it will recommend court-packing, and thereby somehow legitimize the idea. If he wanted to make a push for court-packing, the most effective way would be to just do it right out of the gate, while Democratic anger at Republican appointment shenanigans is still white-hot, and Biden's own influence is at its height. Of course Biden could try to pack the supposedly bipartisan commission with people known to support court-packing; it would then be packed with packers! If he looks hard enough, he could find some people somewhere who support court-packing, but still claim to be Republicans or conservatives. But in that event, there would be little political benefit to having the commission at all, since its recommendations are unlikely to have any sway with anyone who doesn't already support court-packing. The supposedly right-of-center members (with the possible exception of Fried) would be relative nonentities with little credibility. Alternatively, Biden could try to engineer a commission that would recommend one of several proposals out there, that are functionally equivalent to court-packing, but have slightly different structures and labels, such as "rotation" and "court balancing." But, once again, none of these are likely to be endorsed by credible conservative or libertarian experts (Fried, again, perhaps excepted). And, as with traditional court-packing, if Biden really wants to pursue them, his best shot would be to just dispense with any commission and make a push right out of the gate. In sum, if Biden does choose to proceed with the commission idea, that might well be an indication that he wants to avoid court-packing. Even if Biden initially avoids packing, that doesn't mean the idea will be dead, forever. Unfortunately, over the last two years, it has become a part of mainstream political discourse within the Democratic Party. Thus, even if Democrats do not pursue it 2021, it could be revived later. But the more time passes without a serious court-packing effort, the more the political norm against it might be rebuilt. In the long run, hopefully, we might even preclude it by constitutional amendment, though I'm not optimistic that can happen anytime soon. Obviously, the fate of court-packing doesn't depend on Biden alone, though—if he wins the election—he will be the single most significant player. It also depends on the size of any Democratic Senate majority. If, as is likely, that majority is relatively small, court-packing could only pass with the support of moderate swing-voters who may be unlikely to warm to the idea, even if Biden backs it. It would be a mistake to conclude from all this that we are out of the woods on court-packing. If Biden wins, he could still decide to do it, and there are obviously a good many people in his party that would like to see it happen. If I didn't think there was any real chance of court-packing in the event of a Biden victory, I would not have proposed various deals to try to head it off. At the moment, however, Biden seems more like a man who is trying to find a way to avoid it, than one maneuvering to make it happen.

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McConnell: Biden 'Hedging' on Court-Packing Means 'The Answer Is Yes, He's Open to It'

On Thursday’s broadcast of the Fox News Channel’s “Daily Briefing,” Senate Majority Leader Mitch McConnell (R-KY) stated that 2020 Democratic presidential nominee former Vice President Joe Biden is “hedging” on the issue of court-packing and that “when he’s hedging, the answer is yes, he’s open to it.” McConnell said, “Justice Ginsberg had it right. She was asked about this last

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Joe Biden Would Create a Bipartisan Commission To Figure Out Whether He Should Pack the Supreme Court

After weeks of failing to offer a straight answer to the question of whether he'd support adding additional justices to the U.S. Supreme Court, Democratic presidential nominee Joe Biden is testing out a new answer in advance of Thursday's debate. In a preview of an interview that will air Sunday on 60 Minutes, Biden outlines a plan for what he calls a "bipartisan commission" to examine potential reforms to the federal courts. In the clip, posted to the show's Twitter feed on Thursday morning, Biden says he would fill the commission with constitutional scholars from across the ideological spectrum and that he would give the body 180 days to review not only court-packing but "a number of other things," though he does not elaborate. Here's the clip: Watch more of @NorahODonnell's interview with Joe Biden, Sunday. pic.twitter.com/wJmb8MatVg — 60 Minutes (@60Minutes) October 22, 2020 As dodgy political answers go, this one is actually pretty brilliant. Biden is giving the appearance of fleshing out a substantial plan to answer his critics, throwing a bone to liberal activists who favor increasing the number of justices on the Supreme Court, and still allowing himself plenty of ways to avoid actually doing that once he's elected. It's a Rorschach test of an answer, one that probably sounds good to most voters—who generally oppose court-packing but like the sound of bipartisanship—without committing a future President Biden to any particular course of action. Recall that Biden has a long track record of opposing court-packing. In 1983, he referred to President Franklin Delano Roosevelt's 1937 attempt to add justices to the Supreme Court as a "bone head idea" that "put in question for an entire decade the independence of…the Supreme Court." He was still opposed as recently as last year's presidential primary debates, saying in October 2019 that he "would not get into court-packing" due to fears that it would delegitimize the Supreme Court. That's the sort of decadeslong, consistent record that most politicians would be proud to highlight on the campaign trail. But Biden has gone soft on the question in recent months as some Democrats have suggested adding seats to the court to counter the expected confirmation of Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg. Biden has tried, sometimes awkwardly, to find a middle ground between his longstanding opposition to court-packing and his party's fear of a 6-3 majority conservative Supreme Court. In that context, this new promise to create a "national commission" seems mostly like a way to make the question go away. It's a tried and true political strategy: punt a controversial issue to a panel of supposed experts to make it look like you're doing something. As a longtime creature of the U.S. Senate—which isn't called the "world's most deliberative body" for nothing—Biden understands the value of doing nothing while looking like you might do something someday. Still, there are two things we can definitively say about Biden's newest take on court-packing. He has objectively backed away from his former position of opposing the idea, even if he's opening the door only a crack. And he's committed to waiting at least six months into his potential first term before doing it—in other words, it's not important enough to rise to the very top of a Biden administration's agenda. That's good. One more thing: You can almost certainly expect Biden to roll out this answer at tonight's debate if the issue of court-packing comes up. Indeed, this new approach to the question is a campaign strategy too: The image of a bipartisan commission mulling over high-minded constitutional questions about the right way for the country's government to operate draws a pretty stark comparison with how the executive branch is currently running.

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Biden Proposes Commission to Explore Changes to Court System

Democratic presidential candidate Joe Biden said Thursday he will create a commission to review expanding the size of the Supreme Court. "If elected, what I'll do is I'll put together a national bipartisan commission of scholars, constitutional scholars, Democrats, Republicans … and I will ask them to over 180 days come back to me with recommendations as to how to

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In ’60 Minutes’ Interview, Joe Biden Signals He Will Absolutely Pack The Supreme Court If He Wins The Election

Democratic Presidential Nominee Joe Biden wants to pack the Supreme Court. He has actively avoided revealing his position on the issue on the campaign trail, a sign that he does indeed support adding justices to the bench, but is now openly signalling that stance to voters and his hopeful Democratic colleagues.  In a clip from an upcoming interview segment with

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Biden: There's 'a Number of Alternatives' to Court-Packing — SCOTUS Isn't a 'Political Football'

Thursday, CBS News aired a preview of 2020 Democratic presidential nominee Joe Biden’s interview with the network’s Norah O’Donnell set to air Sunday on “60 Minutes.” Biden told O’Donnell that if elected, he intends to put together a “bipartisan commission” to look into how to “reform the court system because it’s getting out of whack.” This comes as President Donald

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GOP Senators Propose Bill to Prevent Court Packing

GOP senators proposed a bill that would stop Democrats from passing any new court-packing laws in the Senate. This comes after Democrats threatened to expand the Supreme Court if Senate Republicans fill Ruth Bader Ginsburg’s seat. According to a new Gallup poll, 51 percent of Americans want Amy Coney Barrett on the Supreme Court. From NTD News

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Lopsided Majority Opposes Court Packing, New Surveys Find

Voters oppose adding seats to the Supreme Court by a significant margin, according to new survey results obtained by the Washington Free Beacon. Data from the Opportunity Solutions Project show that 59 percent of likely voters oppose court packing, compared to just 26 percent who favor it. Support is highest among Democrats at 50 percent. A strong majority of independents, 62 percent,

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What is Court-Packing?

Over at Newsweek, I have a new piece on the history of number of justices on the Supreme Court and the long battle against packing the U.S. Supreme Court. As Crocodile Dundee would say to Dick Durbin, "That's not Court-packing. That's Court-packing. From the piece on Franklin Roosevelt's plan to "reorganize" the Court: The Senate Judiciary Committee finally issued a report that one newspaper columnist privately characterized as "almost like a bill of impeachment." It denounced Roosevelt's proposal as being "in direct violation of the spirt of the American Constitution." It would create a "vicious precedent which must necessarily undermine our system." Court-packing "amounts to nothing more than the declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court. When such a principle is adopted, our constitutional system is overthrown!" Read the whole thing here.

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Trump Confirms More Federal Judges in First Term than Any President in 40 Years

President Donald Trump often boasts of his accomplishments in nominating federal judges, and for good reason: at the close of his first term, he will have confirmed more judges to the federal judiciary in one term than any recent U.S. president. As of October 5, according to the Heritage Foundation, Trump has confirmed 218 judges to Article III courts —

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GOP Senators Propose Constitutional Amendment to Block Packing the Supreme Court

A group of Republican senators on Monday unveiled a constitutional amendment to prevent Democrat lawmakers from expanding the Supreme Court if Democratic presidential nominee Joe Biden wins the White House and Senate. The provision, dubbed the “Keep Nine” amendment, would prevent Congress from expanding or subtracting justices from the Supreme Court. “Make no mistake, if Democrats win the election, they will end the filibuster and pack the Supreme Court, expanding the number of justices to advance their radical political agenda, entrenching their power for generations, and destroying the foundations of our democratic system,” Sen. Ted Cruz (R-Texas) said in a statement. Cruz is joined by Sens. Thom Tillis (R-N.C.), Martha McSally (R-Ariz.), Roger Wicker (R-Miss.), Kelly Loeffler (R-Ga.), and Cindy Hyde-Smith (R- Miss.), who are co-sponsoring the plan to prevent any steps to pack the court. This comes after Democrats from both chambers threatened to expand the Supreme Court if Senate Republicans move forward with filling a vacancy left by liberal Associate Justice Ruth Bader Ginsburg. The move to expand the court size, in efforts called “court-packing,” would be aimed at reshaping the bench in favor of liberals or at the very least balance the ideological makeup of the bench if Democrats were to regain control of the Senate and White House in the next election. After Justices Neil Gorsuch and Brett Kavanaugh were confirmed to the bench, the court has been widely viewed to have a conservative lean, although Chief Justice John Roberts has in recent terms voted with his liberal colleagues on a number of controversial issues. Democrats and progressives fear that if President Donald Trump is successful in confirming his third nominee, Judge Amy Coney Barrett, on the high court’s bench, the court will have a conservative lean for years to come. Barrett’s confirmation hearing ended on Oct. 15 and a vote on the nomination is scheduled for Thursday this week, with the full Senate taking up the nomination on Friday. Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her Supreme Court confirmation hearing on Capitol Hill in Washington on Oct. 14, 2020. (Anna Moneymaker-Pool/Getty Images) The proposal by Cruz and the other five senators also includes a legislative bill (pdf) that would create a “point of order against legislation modifying the number of Justices of the Supreme Court of the United States.” A point of order is a claim by a senator that a rule of the Senate is being violated. The bill aims to prevent “Democrats from unilaterally passing any court-packing legislation in the United States Senate,” the senators said. Court-packing had previously been attempted and was proven to be unpopular. In 1937, President Franklin D. Roosevelt proposed a bill to expand the size of the Supreme Court to a maximum of 15 justices. Roosevelt’s motive was to shift the ideological balance of the court so that it would stop striking down one of his New Deal programs. Although the Supreme Court and the federal judiciary are set up by the Constitution, it also gives Congress the authority to pass laws to set up the judicial branch, including how many justices are on the top court. The Constitution states, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The bar to amend the Constitution is very high as it requires two-thirds of the House and Senate to approve the text of the amendment and then requires three-quarters of the states to ratify the amendment. Given the current division in the country, such as effort is unlikely to succeed. Last month, Reps. Denver Riggleman (R-Va.) and Collin C. Peterson (D-Minn.) proposed a similar amendment to permanently set the number of Supreme Court justices at nine. The congressman said they were worried that partisan efforts to expand the court’s size could set off a battle that could further polarize the country. Biden and vice presidential nominee Kamala Harris have repeatedly refused to give their position on whether they support or oppose proposals to pack the Supreme Court.

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Why Leftist Judges Play Politics And Truly Conservative Judges Don’t

Imagine a football game in which the referee suddenly picks up the football, runs it into the Red Team’s end zone, and declares a touchdown for the Blue Team. When the Red Team protests, he just replies, “The NFL Rule Book says, ‘The referee is to see that the ball is properly put in play and shall decide on all

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Sen. Chris Coons Suggests He Is Open to Expanding the Supreme Court

Sen. Chris Coons (D-Del.), a longtime ally of Democratic presidential nominee Joe Biden, said he is open to expanding, or “packing,” the Supreme Court if Judge Amy Coney Barrett is confirmed later this month. “Like Joe Biden, I’m not a fan of expanding the court but we have a few weeks here to see whether there are four Republicans who will step back from this precipice,” Coons told CNN on Sunday. Coons asserted that Republicans and President Donald Trump are planning to overturn the Affordable Care Act, known as Obamacare, during the pandemic by trying to confirm Barrett. The Supreme Court will hear an Obamacare-related case about a week after the Nov. 3 election. Biden has not revealed whether he supports packing the court with presumably liberal-leaning justices. He has spent several weeks avoiding directly answering the question. “[Republicans are] doing this to get someone on the court just in time, a week after the election, to take away critical health care protections from a majority of Americans, we need to focus on that,” Coons told CNN. “And then if we happen to be in the fact pattern where we have a President Biden, who will have to look at what the right steps are to rebalance our federal judiciary.” The Senate Judiciary Committee last week held hearings for Barrett’s confirmation. The full chamber is expected to approve her confirmation before Nov. 3. Democratic presidential nominee Joe Biden addresses a drive-in campaign rally at the Michigan State Fairgrounds in Novi, Mich., on Oct. 16, 2020. (Chip Somodevilla/Getty Images) Biden said Friday that he will “make clear” his position on packing the Supreme Court when the Senate votes on Barrett. “I’m going to make clear my position in the next several days when they vote on this nominee, but I’ve got to keep the focus on that,” he told Fox 2 Detroit, adding that “when the [Senate Judiciary] Committee makes the decision, and the vote begins to occur, that’s when I’ll let you know my position.” Biden said that it is Republicans who are “packing the court” by filling the vacancy left after the death of Justice Ruth Bader Ginsburg. However, packing the court does not normally refer to filling vacancies, but to expanding the number of judges or justices. In the Fox 2 interview, Biden attempted to elaborate but didn’t provide a definitive answer. “As you know, I’ve not been a fan of packing the court but what might happen is that we have to take a look at how this all works out and determine whether there’s other means by which we should take a look at how to make sure that this kind of thing doesn’t happen,” he said. During the third and final debate this month, Trump will likely again try to needle Biden about the Supreme Court.

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Biden Surrogate Says He’s Open to Court Packing

While Democrats have implied their intention to pack the Supreme Court for weeks, Sen. Chris Coons (D., Del.) on Sunday explicitly said he was "open" to adding justices to the High Court. "If we happen to be in the fact pattern where we have a President Biden, we'll have to look at what the right steps are to rebalance our

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Exclusive–Steve Daines: Democrat Steve Bullock's Court Packing an 'Existential Threat' to America

Sen. Steve Daines (R-MT) told Breitbart News Saturday that Montana Gov. Steve Bullock’s (D) embrace of court packing serves an “existential threat” to the United States of America. Daines spoke to Breitbart News Saturday host Matthew Boyle as Bullock, who hopes to oust Daines in November, became the first Senate Democrat candidate to embrace packing the Supreme Court with additional justices last

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WATCH: Joe Biden Still Denies Stance On Court Packing

Instead of a second debate where Joe Biden would have stumbled around until his battery died, both candidates opted to do town hall meetings. While President Trump talked on the issues and expressed concern about the path America is on, Biden opted to stare blankly into the lights and not answer a single question, especially when the subject of Court

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Biden Entertains Court Packing After Election: ‘Depends on How Much They Rush This’

Democratic presidential nominee Joe Biden entertained the idea of packing the Supreme Court on Thursday during an ABC town hall. In a lengthy exchange with ABC's George Stephanopoulos, Biden said his opinion on whether or not to pack the court "depends" on how the confirmation process of Supreme Court nominee Amy Coney Barrett is "handled." "It depends on how much they

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Dems Seek to Fundamentally Remake American System with Court Packing: Hugh Hewitt with Senator Ben Sasse

Hugh Hewitt talks with Senator Ben Sasse about the hearings for Amy Coney Barrett and what steps Democrats are taking to recreate the government. See omnystudio.com/listener for privacy information.

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Democrats Know It's Over. Amy Coney Barrett Will be Confirmed: Sebastian Gorka with Newt Gingrich

Sebastian Gorka talks with former Speaker of the House, Newt Gingrich, about the Amy Coney Barrett hearings, how Joe Biden could cause rebellion of the Left on court packing, and how the coronavirus may affect the election. See omnystudio.com/listener for privacy information.

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A Brilliant Nominee

Townhall Review – October 17, 2020 Hugh Hewitt and Nebraska Senator Ben Sasse talk about “court packing” and Senator Sasse educating his peers, pointing out that the Supreme Court has had 9 members since 1869. Mike Gallagher examines polling by looking at an article by Byron York in the Washington Examiner. Hugh Hewitt and Energy Secretary Dan Brouillette talk about the impact the “Green New Deal” could have on our energy independence. Hugh Hewitt talks with Arkansas Senator Tom Cotton about the Democrat’s claim that Supreme Court nominee Amy Coney Barrett would do something about Obamacare provision for “pre-existing conditions.” Hugh Hewitt talks with Rick Gates about his book,” Wicked Game – An Insider’s Story on How Trump won, Mueller Failed, and America Lost.” Dennis Prager talks with Jay Richards of the Discovery Institute about a book he collaborated on, “The Price of Panic – How the Tyranny of Experts Turned the Pandemic into a Catastrophe.” Sebastian Gorka and former House Speaker Newt Gingrich talk about his book, “Trump and the American Future.” Larry Elder opines on the recent World Health Organization urging of world leaders to stop using lockdowns as the primary method of pandemic deterrence. See omnystudio.com/listener for privacy information.

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Joe Biden Still Doesn't Have a Coherent Answer About Court Packing

Exactly one year ago, former Vice President Joe Biden stood on stage with 11 other presidential hopefuls and got asked a direct question about whether he would "seek to add justices to the Supreme Court." Biden's answer was clear: "I would not get into court packing," he said. "We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the Court has at all." On Thursday night, Biden was the only candidate on stage at the National Constitution Center in Philadelphia—he and President Donald Trump had dueling town hall events in lieu of a second presidential debate. And he was, once again, asked about whether he'd support an attempt to add justices to the Supreme Court in light of Republican efforts to confirm Judge Amy Coney Barrett to the Court prior to this year's election. The version of Biden who was once clear-eyed about the dangers of expanding the Supreme Court has recently become much foggier on the topic, and ABC's George Stephanopoulos gave Biden a chance to set the record straight. The former vice president declined to take it. "I have not been a fan of court packing," Biden said, before repeating his concerns about every subsequent president trying to add more and more justices. "So you're still not a fan," Stephanopoulos pressed. "Well, I'm still not a fan," Biden hedged. "I didn't say—it depends on how this turns out." Stephanopoulos, to his credit, did not let Biden off the hook. "What does that mean?" he pressed. "Right now it looks like they are going to have a vote around Halloween. So if they vote on it before the election, then you are open to expanding the court?" That question elicited the response that best sums up Biden's slippery stance on the whole matter. "I'm open to considering what happens from that point on," he said. Which means…well, your guess is as good as mine. Here's the full exchange: .@GStephanopoulos on court packing: "Don't voters have a right to know where you stand?" Biden: Voters will know "before they vote." GS: "So you'll come out with a clear position before Election Day?" Biden: "Yes, depending on how [GOP] handle this." https://t.co/JEyTOkB6qk pic.twitter.com/RHnfjixsHU — ABC News (@ABC) October 16, 2020 As Reason's Jacob Sullum noted earlier this week, Biden's sudden reticence to criticize court packing is an alarming development. The former vice president has a long track record of shunning the idea—and for good reason, since it remains pretty unpopular with voters more than eight decades after President Franklin Delano Roosevelt last pushed it. If Biden has changed his opinion on this topic, voters deserve to know. If he hasn't, why can't he just say so? It's pretty obvious that Biden is making a calculated political maneuver here. If he comes out in favor of court packing, he risks handing Republicans a new campaign issue at a time when he's just trying to run out the clock with a significant lead in the polls. If he says he's against court packing, he trades away leverage that he could use after he's elected. But refusing to commit one way or the other is disrespectful to the people whose support Biden is seeking. "Don't voters have a right to know?" Stephanopoulos asked near the end of the exchange on Thursday night. "They do have a right to know," said Biden. "They have the right to know where I stand before they vote." That's not good enough. Lots of people are already voting. This isn't a new issue, and Biden should have been able to provide a clear and direct answer by now.

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

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.

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

Joe Biden Attempts to Claim President Trump is Already Packing the Court

Former Vice President May well Biden claimed Friday that Chief executive Donald Trump is already “packing” the particular Supreme Court. Biden himself has avoided saying when he supports packing the Courtroom, and dodged the question again in a town hall Thursday. But on Friday, Biden attemptedto claim that it is really the

Continue Reading Joe Biden Attempts to Claim President Trump is Already Packing the Court

Gunslingers for Liberty: Can There Be Peace After RBG? – 9.20.20

Please respect our republishing guidelines - Click Here Editor’s note: Miss some of this week’s news, public policy, and politics? Stay current, keep up, and get out ahead of the pack with Liberty Nation’s Sunday News Round-up. Yeehaw! Just Another Reason to Riot Liberal Supreme Court Justice Ruth Bader Ginsburg has passed away; RIP, RBG. How does the left celebrate her life and mourn her loss? With threats of violence, of course. Should President Trump dare to do his job and at least try to fill the vacancy, many on the left plan to – as former CNN contributor Reza Aslan put it – “burn the entire f*cking thing down.” Are these threats serious, or can we expect about as many to act as we saw move to Canada when Trump was elected? Liberty Nation’s Jeff Charles has the most likely answer: “While it seems clear that some of the individuals predicting riots in response to a potential confirmation of a new justice are engaging in hyperbole, the widespread unrest that has swept American cities over the past few months indicate that these remarks should be taken seriously. At this point, the anarchy being perpetrated by the far-left has ceased being about the death of George Floyd. In fact, it was likely never about him in the first place. … More violence may break out if the president and Senate manage to push through another confirmation. But in reality, these threats do not have teeth, as every thinking person understands that the buffoons engaging in the rioting and looting aren’t going to stop if Republicans acquiesce to their demands. Put simply, if they’re going to act like childish thugs either way, why should anyone listen to them at all?” What to Watch for There’s no reason to suspect Trump won’t move to fill this vacancy. The real question is how many of these people will make good on their threats and how that violence will be met. Supreme Court Showdown We can be reasonably sure that the president will make an appointment – he apparently plans on announcing the nominee next week. Another thing we can be sure of is that the coming confirmation battle will, as Liberty Nation’s Tim Donner put it, “make the shameful Brett Kavanaugh episode look tame.” As Tim explains: “The left will almost certainly employ whatever weapons remain in their well-worn anti-Trump arsenal to obliterate Trump’s nominee. You can bet they are already preparing the harshest of personal attacks on the most prominent names on Trump’s extensive and publicly-released list of potential justices.” They don’t really have much of a choice. The anti-Trumpers went all-out in their attempts to destroy Kavanaugh, and he wasn’t replacing an actual liberal judge. If the left fails now, they’ll give firm control of the Supreme Court to conservatives. What to Watch for There’s a potential solution for Democrats, should Trump manage to replace RBG, though it failed the last time they tried it. As Liberty Nation’s Graham J. Noble pointed out, while FDR failed in his court packing scheme, that’s the most likely route for Democrats to take once they regain power. Washington Whispers & Other Juicy Tidbits Be on the lookout for: Trump hasn’t announced his RBG replacement yet, and the court packing schemes are already being hatched. Writing for theweek.com, one author suggests that Democrats shouldn’t panic; another Trump term means at least RBG was getting replaced. Instead, he says they should recognize this for the trap it is, as the next time Dems are in power, they’ll just add justices to the court. Stay dialed into all the latest news, public policy, and politics affecting your liberty and freedom with Liberty Nation, where we like to say that Truth is Making a Comeback because Facts Matter. Bookmark our page, download our LN News & Commentary App, or sign up to our Daily Briefing. Check Out Our Gunslingers For Liberty [embedded content] ~ Read more at LibertyNation.com

Continue Reading Gunslingers for Liberty: Can There Be Peace After RBG? – 9.20.20