Hey, Joe Biden and Kamala Harris: say you want to pack the court
Democrats need to stop being afraid of being bold.
Democratic presidential nominee Joe Biden was in the White House when senate majority leader Mitch McConnell blocked the nomination of Merrick Garland to the Supreme Court. Senator Kamala Harris was also in the chamber at the time, and one year later, she had a front-row seat for the nomination of Neil Gorsuch, who wound up taking the seat pegged for Garland.
Now, with the presidential election less than one month away, Harris will soon take part in hearings for Amy Coney Barrett. It seems inevitable the Republicans will confirm Barrett, barring any additional Covid breakouts among its elderly and mask-defying caucus. Of course, President Barack Obama nominated Garland to the Supreme Court eight months before the presidential election, but he wasn’t allowed to fill the seat.
That is a long way of saying the Republicans are on the verge of stealing two Supreme Court seats, and setting the country on an irreversible rightward turn. Already, Justices Clarence Thomas and Samuel Alito have issued an impassioned rebuke against the Court’s same-sex marriage ruling, writing the decision “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.”
And yet, Biden and Harris refuse to say whether they want to pack the court. This is a quintessential example of Democrats playing by rules that no longer exist. Hell yes, Biden and Harris should say they want to pack the court. In fact, it should be one of the calling cards of their campaign.
But they refuse to even acknowledge the idea. On Wednesday, when Pence turned a question about whether Justice Amy Coney Barrett would mean the end of the Affordable Care Act — potentially resulting in 21 million people losing their health insurance — into a soliloquy about how Biden and Harris intend to pack the court, the junior senator from California transitioned into a history lesson about Abraham Lincoln and the 1864 presidential election.
When Pence followed up, Harris deflected again:
So, the Trump-Pence administration has been – because I sit on the Senate Judiciary Committee, Susan (Page), as you mentioned. And I've witnessed the appointments, for lifetime appointments to the federal courts, district courts, Courts of Appeal -- people who are purely ideological people who have been reviewed by legal professional organizations and found to be not competent, are substandard. And do you know that of the 50 people who President Trump appointed to the Court of Appeals for lifetime appointments, not one is Black? This is what they've been doing. You want to talk about packing a court? Let's have that discussion.
In last week’s debate, Biden also dodged the court packing topic. "I'm not going to answer the question,” he said.
But why? Conservative cause célèbres like overturning Roe v. Wade and Obergell v. Hodges are deeply unpopular with most Americans who aren’t part of the Heritage Foundation or Federalist Society. In addition, a record-high 62 percent of voters say they support Obamacare, with four out of five supporting protections for those with pre-existing conditions.
The argument for court packing is simple: when Justice Barrett is confirmed — unfortunately, it doesn’t appear as if snarky tweets are going to stop this catastrophe, either — the Supreme Court promises to become an ideological playground for Ayn Rand devotees. This term, the Supreme Court will hear Texas’ legal challenge to Obamacare, which could dismantle the program in the midst of a global pandemic that’s killed more than 210,000 Americans.
That is not a popular idea, and the optics are terrible. There’s a reason why the Republican Party hasn’t actually promoted a replacement for Obamacare — despite controlling the White House and Senate for the last four years — and Trump signed a performative executive order protecting those with pre-existing conditions. They don’t want to admit what they’re really up to, because it is unctuous.
That’s why Pence, who once signed a law as Indiana governor mandating funerals for fetuses and said two years ago he still wants Roe overturned, evaded the question Wednesday about what Barrett’s pending confirmation means for a women’s right to choose.
President Trump and I could not be more enthusiastic about the opportunity to see Amy Coney Barrett become justice Amy Coney Barrett. She's a brilliant woman. And she will bring a lifetime of experience and a sizable American family to the Supreme Court of the United States. Our hope is in the hearing next week, unlike Justice Kavanaugh received with treatment from you and others. And we hope she gets a fair hearing. And we particularly hope that we don't see the kind of attacks on her Christian faith that we saw before. The Democratic Chairman of the Judiciary Committee before when, when Judge Barrett was being confirmed for the Court of Appeals, expressed concern that the dogma of her faith lived loudly within her, and Durbin of Illinois said that it was a concern. Senator, I know one of our judicial nominees, you actually attacked because they were a member of the Catholic Knights of Columbus, just because the Knights of Columbus holds pro-life views.
A recent NBC News/Wall Street Journal poll shows 63 percent of Americans don’t believe the Supreme Court should overturn Roe, with even 47 percent of Republicans opposed to the idea.
The numbers are similar when it comes to same-sex marriage. Two-in-three Americans support same-sex marriage, according to Gallup. A 2019 survey from Marquette Law School found 61 percent of Americans support workplace protections for LGBTQ people, and that was before last summer’s landmark ruling.
The priorities of a Supreme Court with a conservative super majority do not align with the priorities or interests of most people. But that’s the Court we will get, unless Biden and Harris can add more justices.
Packing the court is not “norm shattering.” It is simply fixing a body that was stolen from the American people. Democrats can’t be afraid to be bold.