What Biden Should Say about Court-Packing

Published at 15:23 on 17 October 2020

I am not going to go through the effort of drafting a speech in full, but what he says should mention the following points:

  • During the Obama Administration, the GOP acted to frustrate not just his Supreme Court appointments, but his judicial appointments in general.
  • As soon as Trump took office, the Senate eagerly enabled his administration’s filling of the resulting backlog of empty seats.
  • The Trump regime has aggressively screened its nominees for ideological correctness, and much more so than any previous administration.
  • Add that to the judges appointed during the George W. Bush administration, which also lost the popular vote, and a huge chunk of Federal judges, at all levels, have been appointed by administrations without popular consent.
  • Therefore, court-packing is not something the Democrats wish to do; court-packing merely represents an undesirable status quo.
  • All of this has been done legally; no laws were broken in doing it.
  • Likewise, the law (specifically the Constitution) gives the President and Congress the right to set the size of the Supreme Court. That there be nine justices is mentioned no place in the Constitution. The size of the Court has been changed before, and it can be changed again.
  • That said, changing this number is a drastic step, and doing so might well be expected to increase the already dangerous level of polarization in this country.
  • Given that downside, it is therefore not a step to be taken lightly, and hopefully a step that can be avoided.
  • Whether or not it can be avoided depends on the conduct of this administration, the Senate, and the Courts.
  • However, if a Court, the majority of the justices which were appointed by administrations operating without the consent of the governed, legislates from the bench to further thwart the will of the governed, my hand may be forced.
  • For example, I am not willing to see health care taken from millions of citizens with pre-existing conditions, and will do everything legally within my ability to prevent this. I consider this to be the only decent and moral stance I can have on this issue.
  • To reiterate, I hope it doesn’t come to this.
  • But, over 250 years ago, our founding fathers wrote: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”
  • While I hope I will not be compelled to change the size of the Court to preserve the principle of consent of the governed, my dedication to this principle means that I cannot unilaterally relinquish all possibility of using that tool, either.
  • If Republicans are concerned about packing the courts, the single most important thing they should do right now is to put Amy Coney Barrett’s nomination on hold, and not let it advance unless the winner of the coming election approves of it. No other step could do more to preserve the integrity of our courts.

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