Opinion: Biden needs to come up with a better answer on court packing

Joe Biden gestures while speaking in 2016 at an event in Boston.
Former Vice President Joe Biden said he would disclose his position on expanding the Supreme Court after the election.
(Seema Mehta)

Yes, President Trump and his allies are trying to lay a trap for Joe Biden by pressing him to say whether he would support expanding the size of the Supreme Court — a.k.a. “court packing.”

Yes, the court-packing issue is a distraction from points Biden wants to drive home in the waning days of the campaign — and from Trump’s refusal to commit to a peaceful transfer of power if he loses the election.

Yes, Biden’s deflection of questions on this issue protects him from the flak he would take from either embracing or repudiating a priority of progressive Democrats who are seething over the likelihood that the Republican-controlled Senate will confirm Trump’s nominee, Judge Amy Coney Barrett, to the high court. (Barrett’s confirmation hearings started on Monday.)


All of these things are true, and Biden’s response is still unsatisfactory. Last week he said: “They’ll know my opinion on court packing when the election’s over.” On Sunday, Biden deputy campaign manager Kate Bedingfield in a TV interview declined to be more definitive, saying, “I am not going to play Donald Trump’s game.”

So what should Biden say to keep this issue from dogging him until Nov. 3?

He could reiterate his previously announced opposition to court packing. Last year he said: “I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”

That would please opponents of enlarging the court, but it would antagonize progressives. It also would be disingenuous if Biden really is thinking of changing his mind because of the hypocrisy Senate Republicans have shown by blocking President Obama’s nomination of Judge Merrick B. Garland in 2016 — supposedly because it was an election year — and then rushing to confirm Barrett.

Biden could say this:

“I’ve been skeptical about making this change, but I might have to rethink my position if Mitch McConnell rushes the confirmation of Judge Barrett in violation of his own rule and the effect is to shift the court abruptly to the right.”

Succinct, snappy and more responsive than, “Wait until the election is over.”

Then he can say: “Next question.”