Once Burned, Twice Shy — Dems Won’t Acknowledge Court Packing Scheme

By Joe diGenova
October 13, 2020
DailyCaller.com

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.