- The Washington Times - Tuesday, September 22, 2020

Democratic presidential nominee Joseph R. Biden is refusing to say whether he supports packing the Supreme Court, labeling the question a distraction, even though adding more justices has emerged as a top item on his liberal base’s wish list.

The former vice president explicitly refused to take a position this week. He called it “a legitimate question” but said giving an answer would hurt his ability to complain about President Trump’s attempt to speed a nominee to the high court.

“It will shift the focus,” Mr. Biden told WBAY-TV in Wisconsin. “Let’s say I answer that question. Then the whole debate’s going to be, ‘[Well], Biden said or didn’t say. Biden said he would or wouldn’t.’”

That is exactly what Republicans are planning.

Even as they take heat over Mr. Trump’s Supreme Court push, Republicans argue that Democrats will suffer for suggesting that seats be added to the court to swamp the president’s picks. Republicans compared the Democrats to Venezuelan socialist dictator Hugo Chavez, who packed the court to get his way near the beginning of his reign.

Jason Thompson, a Republican National Committee member from Georgia, called the idea of expanding the court “absolutely ridiculous” and said some Democrats are losing their minds over how to respond to the vacancy on the court.

“They didn’t expect Ruth Bader Ginsburg to pass away at this time, so they’re in panic mode and they’re basically saying anything at this point,” Mr. Thompson said.

The Supreme Court has had nine members since just after the Civil War.
President Franklin D. Roosevelt, angered after losing some key New Deal rulings, pushed a plan in 1937 to try to expand the court to as many as 15 justices. Congress ultimately rejected the idea even though it was overwhelmingly Democratic, with more than 330 House members and 75 senators.

In 2004, Chavez signed legislation expanding Venezuela’s supreme court from 20 justices to 32 and pushed his own picks through the legislature.
Strong-arm leaders in Turkey and Hungary have also expanded high courts to pack them with allies.

Senate Majority Leader Mitch McConnell, Kentucky Republican, said Democrats suggested court-packing well before Justice Ginsburg’s death. Indeed, it was a point of debate during the Democratic presidential primary season.

Mr. Biden last year wasn’t a fan. “We’ll live to rue that day,” he said. Sen. Kamala D. Harris, now his running mate, said at the time that she was open to packing the court.

With Justice Ginsburg’s death, the issue has come roaring back.

“If they just steamroll to the appointment of this new Supreme Court justice to give the Republicans a 6-3 margin in the Supreme Court, then next January, the Democrats in the majority in the Senate must abolish the filibuster rule and we must then enlarge the Supreme Court because they will have stolen two Supreme Court seats,” said Sen. Edward J. Markey, Massachusetts Democrat.

House Judiciary Committee Chairman Jerrold Nadler, New York Democrat, said over the weekend that if Mr. Trump pushes through a nominee and Mr. Biden wins the election, then Democrats should look at expanding the court.

Senate Minority Leader Charles E. Schumer, New York Democrat, has vaguely said that everything is on the table.

Mr. Biden’s team was annoyed by calls from people on the left, including Mr. Markey, to embrace such far-reaching proposals this close to the election, according to The Washington Post.

“People in your own party shouldn’t cause you problems 44 days out,” an unidentified adviser told the paper.

Some on the left say remedies like court-packing are vital to counter what they call a Republican “power grab” to jam through Justice Ginsburg’s replacement before the Nov. 3 election.

Neil Sroka, a spokesman for the liberal advocacy group Democracy for America, said Mr. Biden correctly steered the conversation back to what Republicans are trying to do rather than Democratic reaction.

“Biden is right to re-center on what the actual issue is right now, which is what the Republican majority in the Senate and Donald Trump seem intent on doing in less than 40 days before an election,” Mr. Sroka said.

He said the only mistake Mr. Biden could make is unequivocally ruling out more seats.

“That would miss the moment,” he said. “I don’t think it really matters what Joe Biden’s position is as long as he recognizes the moment that we’re in.”
Some Democrats see the politics differently.

Jon Ossoff, who is challenging Sen. David Perdue, Georgia Republican, has come out against the idea, as has Mark Kelly, the Democratic candidate running against Sen. Martha McSally, Arizona Republican.

Polling on the issue has been mixed. In a Data for Progress poll, 40% of voters said they would support expanding the court if the Senate confirms Mr. Trump’s pick, compared with 39% who said they were opposed.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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