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Biden Himself Is One Obstacle to Democrats’ Court Packing Plan

Sept. 21, 2020, 7:15 PMUpdated: Sept. 22, 2020, 8:00 AM

If Republicans confirm a new Supreme Court justice before the election but lose the presidency and the Senate, a push by some Democrats to even the score by packing the court during a Biden administration could face an unexpected hurdle in Joe Biden himself.

On the campaign trail this year, Biden—who for eight years on Capitol Hill ran the powerful Senate Judiciary Committee, which vets would-be justices—said he opposed expanding the Supreme Court.

At the time the court hung in a delicate 5-4 balance of sorts, with Ruth Bader Ginsburg among the four-justice liberal minority, and talk of an open seat was merely theoretical.

But Ginsburg died Sept. 18, and if President Donald Trump and Senate Majority leader Mitch McConnell (R-Ky.) manage to push through a speedy replacement, Biden could find himself facing a different political calculus.

The Supreme Court has been a nine-justice establishment for 150 years, and the Democrats who stood up to President Franklin Delano Roosevelt’s court-packing plan in the 1930s “were wise enough to understand that whoever then has the majority will have the ability to abuse it, and it will lose its legitimacy,” Biden said at the Feb. 7 Democratic presidential debate.

On Monday, Biden refused to say whether he’d back adding to the court if Trump’s choice wins confirmation, and Biden then wins the presidency.

“It’s a legitimate question, but let me tell you why I’m not going answer that question,” Biden said during an interview with television station WBAY in Green Bay, Wisconsin. “Because it will shift the focus.”

“The discussion should be about why he is moving in a direction that’s totally inconsistent with what founders wanted,” Biden said of Trump.

“The Constitution says voters get to pick a president who gets to make the pick and the Senate gets to decide,” said Biden. “We’re in the middle of the election right now, you know people are voting now. By the time this Supreme Court hearing would be held, if they hold one, it’s estimated 30 to 40% of American people already have voted. It is a fundamental breach of constitutional principle. It must stay on that and it shouldn’t happen.”

‘Nothing is Off The Table’

Expanding the number of seats on the nine-member Supreme Court was endorsed over the weekend by Sen. Ed Markey (D-Mass.)., House Judiciary Chairman Rep. Jerry Nadler (D-N.Y.), and former U.S. Attorney General Eric Holder.

Sen. Richard Blumenthal (D-Conn.), tweeted that if Republicans “recklessly & reprehensibly force a SCOTUS vote before the election—nothing is off the table.”

And Sen. Sheldon Whitehouse (D-R.I), a Judiciary Committee member, said of Republicans who push back on Democrats’ calls for expansion: “After this stunt, they forfeit any standing to complain about procedural matters in the Senate.”

But Whitehouse declined to comment on whether he supports adding seats.

And making it a reality wouldn’t be easy. Democrats would have to win control of both the White House and the Senate—and first eliminate the filibuster, assuming they don’t have a 60-vote majority. And as in the case of eliminating filibusters for judicial nominees, Democrats could come to regret the decision the next time Republicans controlled both the Senate and White House.

“The calculus that all senators will be trying to work through is that once the Democrats have eliminated the filibuster and expanded the size of the court, there’s nothing to prevent Republicans from increasing the size of the court again when they take back the Senate, as they will certainly do,” said Lauren Bell, political science professor and dean at Randolph-Macon College.

No Rule of Nine

Nothing in the Constitution sets the court’s membership at nine and diluting conservative voting power by adding new justices is an idea that Roosevelt floated in the 1930s. And Democratic presidential hopefuls, including now-vice presidential candidate Kamala Harris, said they were open to the concept during this year’s presidential campaign.

In the hours following Ginsburg’s death, Brian Fallon, executive director of the activist group Demand Justice and former press secretary for Hillary Clinton’s 2016 presidential campaign, urged high court expansion as part of Democrats’ response, saying, “If GOP rams Trump pick thru anyway, add seats to the Court.”

“This is the play. There is no other play,” Fallon said.

Nan Aron, founder and president of the liberal judicial advocacy group Alliance for Justice, told reporters she was optimistic Democrats could block a pre-election nominee. But she added: “If there is a justice confirmed, we will, and we assume senators will, seriously consider employing all tools in their toolbox, including expansion of the court, if necessary.”

If Republicans fill the vacant seat, “especially if the vote comes after a Trump loss and they go ahead and push somebody through, you’ve just given a green light to study manipulating the size of the Supreme Court to compensate for it,” said Russell Wheeler, who studies judicial confirmations at the Brookings Institution.

Expansion Considerations

The Judiciary Act of 1869 established the nine current seats on the Supreme Court, which means legislation is all that’s needed to alter the size of the bench.

But Democrats can’t advance a court packing bill unless Biden wins the presidential election, Democrats take back control of the Senate, and the new Democratic-led chamber votes to eliminate the filibuster, bringing the number of votes to pass legislation down to 51. Ultimately, Biden would have to back the plan, or could veto any bill to change the court’s makeup.

Neal Devins, a professor at William & Mary Law School, said he thinks it’s very unlikely new seats would be added given the number of things that Democrats would need to do before that happened, “but at the same time it’s imaginable in a way that it wasn’t imaginable before.”

The increasingly partisan judicial confirmation wars “have gone from bad to worse” during recent Supreme Court nominations, said Devins, author of “The Company They Keep: How Partisan Divisions Came to the Supreme Court.”

Justin Wedeking, a political science professor at the University of Kentucky who studies judicial politics, said the calls from Democrats are “mostly threats” in an attempt to get Senate Republicans to be consistent with their position in 2016 that a nominee in the last year of a president’s term shouldn’t be confirmed.

“It is a reminder to Senate Republicans that they won’t control the Senate forever, and that a purely partisan move at this point would have consequences down the road,” Wedeking said.

A ‘Wiser Path’

Others see a different, potentially less politically fraught, way to address the frenzy surrounding vacancies on the court: introducing term limits for justices.

“Democrats are frustrated and rightly so,” said Gabe Roth, executive director of court watchdog Fix the Court. Right now, he said, expansion may feel like the “equal and opposite response” to Republican’s refusal to consider Merrick Garland, President Barack Obama’s proposed replacement for Justice Antonin Scalia in 2016, more than eight months before the presidential election.

But a “wiser path,” he said, would be establishing 18-year term limits for justices, who now have lifetime appointments. A term limit would make vacancies anticipated, and could take the court out of politics in the future, Roth said.

—With assistance from John Harney (Bloomberg News).

(Updated with Biden comment, new information throughout. )

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Gregory Henderson at ghenderson@bloombergindustry.com

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