Column: How Biden blew it on the court-packing question and how he could have avoided the fuss

The U.S. Supreme Court building
The appropriate size of the U.S. Supreme Court is at the center of a potential dispute between Republicans and Democrats.
(Saul Loeb / AFP/Getty Images)

With each passing day, Joe Biden’s campaign strategy looks more brilliant. From the outset, Biden refused to make himself the issue or get in the way of President Trump’s self-immolating behavior.

The single glaring exception? His terrible handling of the court-packing question.

I suspect this began as a kind of gaffe in which, as Michael Kinsley famously said, a politician accidentally tells the truth. I think Biden made the mistake of explaining his don’t-be-controversial strategy rather than merely executing it.

It’s a common mistake. George H.W. Bush once read a note-to-self out loud: “Message: I care.” Donald Trump does it so often, we barely notice. Recall how he said he didn’t want COVID-stricken passengers on a cruise ship to disembark in the U.S. because it would affect his “numbers”?

Biden was first asked about court-packing by a Wisconsin reporter on Sept 21. “It’s a legitimate question,” he replied, “but let me tell you why I’m not going to answer that question. Because it will shift the focus, that’s what he wants, he never wants to talk about the issue at hand, and he always tries to change the subject.” By the time of the presidential debate a week later, that answer was locked in. “Whatever position I take,” Biden said, “that will become the issue. ... I’m not gonna answer the question.”


As strategy, that’s pretty normal — politicians often duck controversial questions that divide their coalition and unite the opposition. But as an answer, the explanation was a hot mess.

Biden should have taken a page from Sen. Majority Leader Mitch McConnell. Until the GOP lost the House, Trump constantly cajoled, pleaded and demanded that McConnell eliminate the Senate’s legislative filibuster. McConnell refused to entertain the notion. He just said, “The votes aren’t there to change it.”

Of course, McConnell opposes eliminating the filibuster. And, if his past statements count for anything, Biden opposes court packing. If Biden had just said, “Look, the votes aren’t there. This is all hypothetical,” and moved on, the message to the base would be: “Get the votes! Flip the Senate!” The message to moderates: “He’s so reasonable.”

A one-day story, if that.

If Biden’s aim was to prevent court packing from dominating coverage, he failed entirely. Again, his strategy was fine. But saying aloud that you won’t answer an important question because the answer will be controversial is not something any politician should do. It only churns the water.

The need to defend his misstep has made things even worse for Biden. Last week, when Biden was asked by a television reporter whether voters “deserved” an answer to the court-packing question, he said no. Over the weekend, he claimed the GOP’s effort to appoint judges and justices according to the rules was “unconstitutional.” And Biden, along with every Democrat willing to talk on TV over the weekend, is redefining court packing to mean filling existing judicial vacancies, so they can call the GOP the “real” court packers.

Worse, Democrats — with help from boosters in the media — are pretending there’s nothing particularly bad or worrisome about actual court packing.


Ever since FDR’s failed scheme in 1937, the term has meant expanding the existing number of seats to make room for additional politically pliable judges. It failed in 1937 because it was seen as a threat to democratic government. “Surely, Mr. Roosevelt’s mandate,” the progressive journalist William Allen White wrote in 1937, “was to function as the president, not as Der Fuehrer.” The then-chairman of the Senate Judiciary Committee, Henry Ashurst (D-Ariz.), called expanding the court a “prelude to tyranny.”

Supreme Court Chief Justice Charles Evans Hughes opposed FDR’s plan because he believed it would “destroy the Court as an institution.” You know who agreed with him? The late Justice Ruth Bader Ginsburg. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court,” she told NPR’s Nina Totenberg last year. “If anything,” she explained, it “would make the court look partisan.” One side would say, “ ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

It’s remarkable how many of the same people who see Ginsburg’s understandable desire to be replaced by a Democrat as “marching orders” — in Sen. Elizabeth Warren’s words — yet find her considered opinion on court packing irrelevant. Even more remarkable: how many of the same people who have — rightly — decried Donald Trump’s violence to norms and institutions think the noblest and wisest response is to escalate the cycle even more.

I suspect Biden doesn’t actually want to pack the court. He probably wouldn’t have the votes, and the fight over court packing would prematurely destroy the “return to normalcy” and “national healer” presidency he’s promised. But because of one blunder that made him the issue, it’s impossible to know what he’ll do.