As President Donald Trump blithely refuses to answer crucial, real-world questions directly related to his fitness for office, Joe Biden is getting lambasted for declining to answer the hypothetical question of whether he would agree to expand the Supreme Court if Democrats take over the Congress and the White House next year.
The contrast is stark. The questions before Trump couldn’t be more basic: Will he adhere to the election outcome? When exactly did he last test negative for the coronavirus? To whom does he owe more than $400 million? Yet Republican leaders who long ago ditched any fealty to unwritten rules of political decorum are shocked — shocked — that some Democrats are even talking about packing the court in the wake of the GOP’s rush job to force the confirmation of conservative Judge Amy Coney Barrett.
Such a court-packing move would be entirely legal and perhaps politically justified, but it’s a suggestion fraught with potential downsides. Still, given the GOP’s behavior these past four years, Biden and other Democrats are under no obligation to take it off the table. If Republicans don’t like it, they can tell it to Judge Merrick Garland.
Garland, of course, was the Supreme Court nominee President Barack Obama named almost a year before the end of his presidency. Senate Majority Leader Mitch McConnell refused to even allow a hearing for Garland, citing the fact that it was an election year and voters should decide. Now, McConnell has reversed himself to rush Barrett’s confirmation only days before the Nov. 3 election — specifically to deny the voters a voice in the decision. To cover his hypocrisy, McConnell offered a jumbled explanation of a nonexistent tradition involving same-party control of the White House and Senate.
He’s doing it because he can. Period.
Since do-anything-you-legally-can is apparently the new standard, then Democrats should, if they get the chance, at least discuss adding seats to the court to counterbalance the two that McConnell has now effectively stolen. Republicans’ hardball tactics have set up a likely 6-3 Supreme Court majority that could render decisions on abortion, health care and other issues that are at odds with strong majorities of Americans. Nothing in the Constitution sets the size of the court; changing it wouldn’t be a manipulation of the bench but remains a viable option to remedy Republicans’ manipulation. GOP outrage at the court-packing option is rich given that their party is leading similar state-level court-packing efforts around the country.
All of that said, there are reasons why Biden and Democrats shouldn’t rush into any decision — not least of which is the real possibility of spurring a judicial arms race in which the court risks being expanded with each new election. Still, the feigned outrage of GOP leaders over the topic deserves nothing but eye rolls in response.
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