How Biden Could Have Avoided His Court-Packing Gaffe

He could have sent a message about the importance of the Senate. All he did was convince Democrats that court-packing is a good idea.

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With each passing day, Joe Biden’s campaign strategy looks more brilliant. From the outset, Biden refused to make himself the issue or get in the way of President Trump’s self-immolating behavior.

The single glaring exception? His terrible handling of the court-packing question.

It started as a gaffe—which Michael Kinsley famously defined as a politician accidentally telling the truth. I think Biden made the mistake of explaining his don’t-be-controversial strategy rather than merely executing it.

It’s a common mistake. George H.W. Bush once read a note-to-self out loud: “Message: I care.” Donald Trump does it so often, we barely notice. Remember how he said he didn’t want COVID-stricken cruise ship passengers to disembark in the U.S. because it would affect his “numbers”?

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  1. Avatar photo
    Scarlette Tarte

    NO. Let's review, shall we?

    In Obama's second term, Mitch McConnell and the Republicans came up the with the idea that Obama even NOMINATING judges as was his right was "court packing". This is the theory that anything a Democratic president does is "illegitimate" just because it is not Republicans doing it.

    Remember Chuck Grassley claiming this? I do, and here ya go...https://www.huffpost.com/entry/obama-court-packing_n_3347961 Just to remind you cons that so want to pretend this never happened.

    And the notion that Democrats were not allowed to fill judicial seats was not a McConnell invention. No it came from the conservative intellectual class, in order to try and obtain permanent, one party rule. Again...from the intertubes...https://www.nationalreview.com/corner/dont-let-democrats-pack-dc-circuit-senator-john-cornyn/

    And after Scalia's death, it became the mission of the party entire, to never let ANY Democratic president nominate and seat a judge on the supreme court. Not just "Ted Cruz" suggested it...it was supported by the party at large. https://www.theguardian.com/law/2016/nov/01/republican-senators-oppose-clinton-supreme-court-nominee

    In fact, they were all ready to change the number of justices DOWN if that is what it took to keep a Democratic appointed justice off the court. ANOTHER form of court packing.
    https://www.npr.org/2016/11/03/500560120/senate-republicans-could-block-potential-clinton-supreme-court-nominees

    It is, in fact, this obsession with not allowing the Democrats to practice the norms of presidential politics, that has led the party into its slide into fascism. The idea that breaking previous norms and rules is Legitimate while Democratic presidents doing LEGAL and legitimate constitutional things are relentlessly cast as either outrageous or "criminal" is how conservatism has operated for two decades. This is why the Republican base so easily slid into authoritarian populism...they had been led there by their party doing plenty of norm busting and getting away with it.

    Which is why now they act like a criminal enterprise, just set up to obtain whatever it is they want from government, allowing their president and others in their party to get away with CRIMES without paying any penalty.

    Now, NOW the Republicans want to cry "foul" and clutch their pearls and cling to their fainting couches in a VERY COORDINATED hit job about Democrats "packing the court".

    Let me tell you what we INTEND to happen after the election, if we win all three branches. We INTEND To go back and investigate EVERY judge appointed by McConnell et al. during these past four years, because they hid some stuff to get some of these people confirmed, and some of these judges lied to congress. Oh yeah, we are going there. Because to undo at least some of the criminality and problems, and to stop the norm breaking, we are gonna have to reset the rules so that EVERYONE has to follow them. If this includes some people going to jail, especially in the Trump family, well so be it, they deserve it. Oh, don't worry, it won't be "made up" stuff, like the Republicans were trying to do by investigating the "unmasking" or by the Durham investigation (which can't seem to find ANYTHING to hang its hat on, now can it?) but real, honest to goodness crimes committed by these people.

    The right can bleat all it wants to about us trying to undo the damage. We have long reached the point of not caring what the right thinks since they actually seem to believe that they should be allowed to operate outside of all legalities and norms, while the Dems MUST play by the rules AND with one hand tied behind their back.

    When it comes to the widespread corruption, there is going to be a whole host of efforts required to patch this country back into some sort of legal framework and it will require prosecutions of officials who broke U.S. laws. It will require reestablishing neutrality of the judiciary, rather than abandoning it as permanent fixture of would-be authoritarian rule.

    Stopping the Republican attempt to completely take over the judiciary in some sort of attempt to maintain control when it does not have legislative control, to corrupt it beyond redemption, will take some absolute reforming of the court. At this point, this IS the compromise position. In fact, compared to how many others on the left feel, this is the MODERATE position.

    This is called "reaping the whirlwind". If you don't want this, then maybe, just maybe, next time, you, Jonah and other conservatives will think twice about supporting someone like Mitch McConnell and his actions. You don't want the court "packed"? Stop trying to do it yourself.

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    wj

    This is that murky transition period where the left leaning people who have been identifying with the Jonahs and Frenches of the world over anti-Trumpism get a reality check - perhaps a bit too soon. It's like... oh... yea... they really are *strongly* right wing.

    Which is fine! But we're going to start noticing our differences more, and we need to think about that.

    There isn't a conservative around who isn't pleased with the SCOTUS pick, even if they don't like the surrounding circumstances. You can just sort of tell. That enthusiasm, I think, is coloring the talk around norms and the consternation over the meaning of "court packing".

    Quite frankly, nobody really cares. Mitch McConnell killed the possibility of norms mattering. Any Republicans concerned about norms for the next decade - deserved to be laughed off the stage. No really - screw you.

    I'm torn - would court packing signal to the R's that the decades-long court schemes to control the courts are futile and can be undone in one term - or would it send the courts into a legitimacy death spiral?

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    Ray Salemi

    I didn’t need Biden to know that court reform is a good idea.

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    Todd T

    What if Democrats negotiated not to “pack” if GOP convinced Kavanaugh to step down? You know they would rather have ACB anyway and Gorsuch has proven to be a free thinker. That’s a very back room scenario but alleviates the hostage situation. Court continues to lean right but retains a strong center swing.

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    1. Foolscap

      The first party to add members to the Supreme Court will lose my vote forever. If it happens, it will instantly become my number one issue.

      I’ve never voted for a republican for national office in my life, but I guess we’ll see what happens.

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    2. Ingenero.lux

      You keep misspelling Bork.

      https://youtu.be/GvFLXFCJvJA

      You want a point that started this? Roe V Wade. Then Republicans gained power to influence that in 1980, but when Reagan nominated Bork in ‘87 Kennedy gave this absolutely vile speech, the hearings were an absolute circus, and Bork became the first Supreme Court judicial nomination to be rejected by the full Senate since Herbert Hoover. This was followed by the consequent nomination of Justices Kennedy and, under HW, Souter to try to escape the terrible twisting of nominees records, which led to two justices far more liberal than Republicans wanted being on the court for decades. Do I understand why you’re angry about Garland? Yes. But if you leave out Bork, Kennedy and Souter, the Clarence Thomas hearings, the slow walking of George W’s judicial nominees by the Democratic Senate (with unfilled judgeships spilling into Obama’s term), the end of the lower court judicial filibuster when Republicans returned the favor with interest, and so on, you’re ignoring a huge and consequential part of the story. Explanation is not excuse, but claiming Gorsuch was the beginning is flat out wrong.

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        1. Ingenero.lux

          Except that claiming an apolitical court stopped with Garland misses that Republicans think the politicization of the court started with Roe and Bork. Does it change where we are? No. But it both changes why, and means that attempting to paint this as the fault of Republicans misses that this is part of a continuum, and Garland didn’t come out of nowhere. Neither side has chosen to stop escalating, and both have continued over decades. Garland was simply part of that fight, a new escalation but also in line with earlier escalations (again, see George W’s court nominations, with some appellate positions held open for them entire eight years of his presidency). Was it right, no. But it also is in line with the escalation we’ve seen. Moving this to the level of court packing, however, isn’t escalation, but the end of the Supreme Court. Joe Biden said the idea was insane last year, Justice Ginsburg said it was a terrible idea within the last year as well.

          History explains that this really is the fault of both sides over the years. History explains that both parties have used the same tactics, slowly one-upping each other. Trying to use that to justify the practical end of the Supreme Court is justifying the end of the country as we know it. Our rights will dramatically shift every four to eight years, and I can’t imagine the Union lasting more than a decade with that instability.

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            Scarlette Tarte

            Wrong. In fact, the Supreme court has been "packed" with conservative justices since 1970. Since the beginning of Chief justice Burger's court,till Ginsberg's death, the Republicans have seated 31 justices on the Supreme court, and the Dems just 8.

            You can attribute Roe to REPUBLICANS. Stop blaming the Dems for this. Stop blocking the court to Dem nominees.

            This IS not the fault of Dems. They have not had the opportunity to much but stop ONE justice, who was a radical.

            It IS The fault of Republicans. Including Roe.

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      Phil H

      The Bostock decision, authored by a Trump nominee, shows that SCOTUS is still an apolitical institution.

      And didn't you read the article? Biden finally admitted he is opposed to packing the Court. So it won't happen.

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      2. Anonymous

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          Phil H

          Increasing the size of the Supreme Court requires passing a bill that a President Biden could veto. Term limits require a Constitutional amendment.

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      rlritt

      I know. I wish we could get some sensible, mature legislators who could work for the country. What a concept.

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        Bill Nelson

        Sensible candidates don’t win. We get the government we elect.

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          David Chen

          We get the government we deserve, and when most Americans (according to some surveys) cant even NAME the 3 branches - then this is what we get. The SC seems to be mostly competent people chosen by an incompetent process, there's still room to fall.

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    5. Nathan

      The supreme court is not politicized - the process is politicized and always has been - they are nominated and confirmed by politicians. The court itself is not a political body - just this year, several rulings went against trump with his own nominees ruling against him.

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        1. Raincheck

          There is no evidence of misconduct by Kavanaugh.

          You get one of Gorsuch and Barrett. I think Garland deserved a vote, and the Barrett nomination should proceed. I don’t know where it says that a President has a 3 year term. But if one believes Garland should have been held off, then Barrett should have as well. That is one extra either way.

          Trying to illegitimize all three is getting a tad greedy.

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            Scarlette Tarte

            Actually there is. It looks like Kavanaugh lied before congress. And we are not talking about Blasey Ford. https://www.motherjones.com/politics/2018/09/five-times-brett-kavanaugh-appears-to-have-lied-to-congress-while-under-oath/

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        2. Anonymous

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            Logical

            ??!!???!!!???🚯🚯🚯🚯

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          2. Anonymous

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  6. Avatar photo
    Bill Nelson

    It really doesn’t matter what Biden says. If the democratic senate votes to expand the court, as president Biden will sign the legislation and any criticism will be met with “it is the will of the people”. And little that Biden says will cause him to bleed support from the left.

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    George.Skinner

    Both sides have seized on the idea that the Supreme Court can be used as a shortcut to political victories rather than facing the slower, more challenging, and less certain approach of obtaining a political consensus. Roe v. Wade is the left's sacred cow; for the right one could cite the more expansive interpretation of the 2nd amendment through Heller. The Supreme Court is sometimes going to have to make a decision in very political issues - think of Brown v. Board of Education or Bush v. Gore. Those have got to be the *exceptions*, not the core function of a panel of unelected, unaccountable judges. One of the best ways to fix this issue would be for the justices themselves to push back on the role thrust upon them - kick stuff back to the legislature for resolution rather than imposing something by judicial fiat. A little humility on the part of 9 learned judges could disarm the weapon that the partisans have been fighting over and save their own institution.

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    rlritt

    It wasn't a gaffe. He is trying to avoid tslking about a made up issue which will brand him regardless of what he says.

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    Earl King

    I don't know what Biden would do if the House and Senate passed legislation expanding the court. I expect you don't know either. He will have no control over ending the filibuster, a Senate rule.
    It seems Schumer is hell bent to exact revenge on the GOP majority....so I expect the filibuster to fall.
    There will not be 60 votes for any of the hair-brained crap Democrats want to do. I suspect the GOP pulling the resistance crap the Democrats pulled have will be rebuffed by eliminating the 60 vote cloture rule. I'm wondering will the GOP slow walk all of Biden's nominees just making it glacially painful and slow? Do we now wandering to both parties playing the resistance card every change of the Presidency?

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    1. cb76

      "Schumer is hell bent to exact revenge on the GOP majority ... rebuffed by eliminating the 60 vote cloture rule ... will the GOP slow walk all of Biden's nominees"

      So are you expecting the Dems to take the Senate or no? Bc if you're worried about the first two things, the third thing is a non issue. And if you think the third thing is going to happen, you don't have to worry about the first two things.

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        Earl King

        Indeed you are correct. I am a pessimist. Trump has done everything possible to not get re-elected. Even Biden taking a mtg for Hunter won’t matter. I think Biden could shoot someone on 5th ave and Democrats and Independent's will vote for him with so many thinking DJT is the anti christ.

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    DougAz

    NEWS Flash: Un-packing the Court

    Yup - just unpack the Court. Reduce the number of Supreme Court Justices to say 8 ? Remove the position in reverse order of seniority. It's a RIF.

    You heard it hear -- on The Dispatch... first ! Un-packing the Court...

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