Evan Vucci/AP Photo
Judge Merrick Garland, center, stands as President Barack Obama, right, and Vice President Joe Biden applaud as he is introduced as Obama’s nominee for the Supreme Court, March 16, 2016.
Joe Biden has been getting pummeled by Republicans, both for the demands of many Democrats to expand the Supreme Court, and for ducking the question of whether he supports the idea. He can blunt these attacks by facing the issue head-on.
Expanding the Court is a legitimate idea because Republicans have been engaging in court-packing for decades. For starters, they have imposed extreme ideological litmus tests on their own court appointees, and shamelessly delayed or blocked Democratic appointments.
They were vicious in blocking Obama’s appointees to every level of the federal judiciary, abusing everything from the norm of senatorial courtesy to the filibuster. They also engaged in bargaining with the Obama White House signaling that centrist nominees would have an easier time.
But, infamously, they denied one of those centrist Obama nominees, Merrick Garland, even the courtesy of a hearing, on the grounds that the next appointee should be named by the next president. Garland was nominated on March 16, when Obama’s term had ten months to run. Amy Coney Barrett was nominated by Trump on September 26, when Trump’s term had less than four. But that was then.
The fact is that the Supreme Court has been different sizes at different periods of American history. If the Republicans think the size of a court is sacrosanct, why did they try the gambit of proposing legislation to shrink the size of the country’s second most important appellate court, the D.C. Circuit, from 11 to 8 in 2013, other than to lock in a conservative majority?
We also need to enlarge federal district and appeals courts, which have not been increased since Jimmy Carter’s presidency, despite population growth of some 40 percent.
Biden needs to explain all this to the voters. He will win points for his candor, and will at least partly defuse the issue.
The term “court-packing” has been repeatedly used by the media in a way that echoes and reinforces Republican talking points. By treating the issue substantively and seriously, Biden can push the media to do likewise.
Chuck Schumer and Nancy Pelosi have followed Biden’s lead, and have refused to say where they stand. They all look evasive, and their stance plays into Republican hands by diverting attention from the outrageous midnight appointment of Judge Barrett. It also serves the Republican strategy of using the issue of Court control to rally Trump’s base.
There was a time when Republican presidents often appointed political moderates, who sometimes voted with liberals and often differed among themselves. In Roe v. Wade, decided by a 7-2 vote in 1973, the decision was written by Justice Harry Blackmun, a Nixon appointee, with the concurrence of Nixon’s Chief Justice Warren Burger. Of the two dissenters, one, Byron White, was a Democrat; and one, William Rehnquist, was a Republican.
Conversely, Democratic appointees have reflected an ideological range. Stephen Breyer, who was appointed by Bill Clinton and confirmed in 1994 by an overwhelming majority of Senate Republicans, is a liberal on civil liberties but a conservative on economic issues.
Today’s Republicans have so politicized the Court that its very legitimacy is in question. Biden needs to say that he has not ruled out expanding the Court, and that he will begin a process of consultation with scholars and jurists to consider several alternatives, including fixed terms for justices, mandatory retirement ages, and a larger Court.
The political reality is that Biden does not yet have a consensus on how to proceed even among Democrats. With the likelihood of a closely divided Senate, he will need to build support for whatever reform project can command backing both among scholars and the citizenry and in Congress.
It’s time for Biden to make a virtue of necessity, and address the issue of court expansion in a principled and candid fashion. Candor is in rare supply these days. Voters appreciate it in a political leader when they see it.
