If history is any guide, the
Democrats have every reason
to fear letting the American
people know the truth about
their desire to pack the
Supreme Court with
ideologically-aligned
justices.
There are few people alive
today who were around for
President Franklin
Roosevelt’s court packing
debacle, but the spectre of
that failure still haunts
the Democratic Party today,
as Senator Kamala Harris
demonstrated with her
panicked efforts to dodge
that question during the
vice presidential debate.
The passing of Supreme Court
Justice Ruth Bader Ginsburg
last month instantly became
one of the most significant
issues of the presidential
campaign. President Trump
and Senate Republicans have
vowed to approve a
replacement in accordance
with their constitutional
roles, while Democrats —
including presidential
nominee Joe Biden and his
running mate — have argued
that the appointment of a
successor should wait until
the end of January, when
either Trump or Biden will
take the oath of office.
Frustrated by their
inability to prevent the GOP
from using its Senate
majority to approve the
President’s third Supreme
Court appointee, Amy Coney
Barrett, some prominent
Democrats have openly
endorsed a drastic maneuver
that has been considered
politically untenable for
nearly a century: “packing”
the Supreme Court to flip
the balance of power in
their favor if they manage
to win control of both the
White House and the Senate.
Although the Constitution
gives Congress discretion
over the number of justices
on the high court, the
current roster of nine has
endured since
1869,
reflecting the country’s
weariness at the end of a
decade in which the court’s
size become heavily
politicized, fluctuating
between seven and 10
justices according to
partisan expediency. More
than half a century later,
incensed that the Supreme
Court had invalidated
certain aspects of his New
Deal policy agenda, FDR
tried to get the
Democrat-dominated Congress
to let him add up to six new
justices, which would have
turned the Supreme Court
into a rubber stamp for his
agenda.
It was a brazen power play
that deeply offended the
consciences of many
lawmakers, who rightly
viewed it as a threat to the
delicate balance of powers
the Founding Fathers had
deliberately made a central
element of the U.S.
Constitution. It was an
embarrassing defeat for a
president known for his
otherwise deft political
instincts, and FDR’s “court
packing scheme” has been
cited ever since as evidence
that the nine-member Supreme
Court is essentially an
immutable reality.
To this day, many Democrats
remain wary of repeating
Roosevelt’s folly, which is
why Biden and Harris have
steadfastly refused on
numerous occasions to give a
straight answer when asked
whether they would support
packing the court if they
manage to win the election.
Biden gave a particularly bizarre
non-answer at
the first presidential
debate, protesting that
“Whatever position I take on
that, that’ll become the
issue” — an echo of House
Speaker Nancy Pelosi’s
infamous declaration that
the American people could
see what was in the
Affordable Care Act after
Congress passed the
legislation — before
suggesting that voters
should express their
opinions on the matter with
their votes in U.S. Senate
races. When President Trump
challenged him point-blank
to answer the question,
Biden simply refused.
Harris followed the same
playbook at the VP debate,
but came prepared with a
rehearsed dodge — an
anecdote about President
Abraham Lincoln abstaining
from nominating anyone to
fill a Supreme Court vacancy
with just under a month left
before the 1864 presidential
election. Harris described
this as a principled act by
“Honest Abe,” claiming he
felt the nomination should
wait until after Americans
had a chance to cast their
ballots.
The problem with Harris’s
“history lesson” is that it
was completely inaccurate.
Even the staunchly
pro-Democrat Washington
Post acknowledges that
the real reason for
Lincoln’s decision to delay
the nomination was that the
politically astute president
wanted to motivate
influential supporters who
desired the position to
campaign for him in the
closing days of the
extremely tight presidential
race. Conveniently for
Lincoln, the Senate was in
recess at the time, and
didn’t reconvene until
December, at which point the
president promptly appointed
Salmon P. Chase — several
months before his second
inauguration.
Vice President Mike Pence
was undoubtedly aware that
Harris was playing fast and
loose with the historical
record, but he didn’t let it
distract him. After several
unsuccessful attempts to get
his evasive opponent to
provide an actual answer, he
supplied it himself,
explaining that the only
reason Biden and Harris
consistently refuse to state
their position on packing
the court is that they
firmly intend to do so at
the earliest opportunity.
Even a cursory review of the
historical record makes it
obvious that the American
people don’t like it when
elected officials in the
other two branches of
government try to turn the
Supreme Court into a
political pawn. Biden and
Harris are well aware of
this, which is why they’ll
do anything to avoid
admitting their real
intentions.
Joseph diGenova was US
Attorney for the District of
Columbia and an Independent
Counsel. He is the founding
partner of diGenova &
Toensing, LLP.
