Biden keeps both sides guessing on court packing

Democratic nominee Joe Biden’s signal Thursday night that he could be open to packing the Supreme Court with new justices pleased progressives, while adding confusion given his comments earlier in the week that he was “not a fan” of court packing. 

The issue remains a prickly one for Biden, who is trying to hold together a coalition of Democrats that includes moderates and progressives.

The former vice president said he would make a final decision on court packing before Election Day, even though millions of Americans have already started voting.

In a televised town hall Thursday night, Biden pointed to Republican efforts to speed along Judge Amy Coney Barrett’s nomination just weeks before the election as the reason for his potential change of heart on the issue. 

“It depends on how much they rush this,” Biden said during the ABC News town hall in Philadelphia.

Some Democrats welcomed the news, saying the Democratic nominee understands what the party wants, particularly at a time when Republicans moved ahead with the confirmation process so close to the election. They are also quick to recall the position GOP leaders took in 2016, when then-President Obama nominated Judge Merrick Garland to the Supreme Court. Republicans at the time said a nominee should not be considered so close to an election, even though it was eight months away.

“The entire Republican attitude, on Amy Coney Barrett and most other things, appears to be, ‘What are you gonna do about it, huh?’ And Democrats — Joe Biden especially — need to show that there’s something we can, and will, do about it,” said Democratic strategist Christy Setzer, while acknowledging that Biden is walking “a tough line” with center-right, center who might see it as radical, and fed up progressives who want more action. 

“That’s not just about standing up against bullying and illegitimate power grabs. It’s about restoring basic fairness,” she said.

Some progressives said Biden’s apparent willingness to budge on the issue, even without committing to it entirely, was meaningful.

“I think it indicates that vice president Biden is the kind of leader who understands how to read the writing on the wall,” said Neil Sroka, a strategist for Democracy for America, one of 20 progressive groups that signed a letter calling on court reform to be included in the Democratic platform. “Like many leaders, we often have to do things that we are not a fan of.”

At the same time, Sroka said he understood why Biden wasn’t wholeheartedly backing the idea. 

“I think he’s being transparent,” he said. “If he had taken a firm position on this, Republicans would have made their vote about that.”

Earlier this week, in an interview with WKRC, a local affiliate in Cincinnati, Biden said he is “not a fan of court packing, but I don’t want to get off on that whole issue.”

“I want to keep focused,” Biden added. “The president would like nothing better than to fight about whether or not I would in fact pack the court or not pack the court, et cetera. The focus is, why is he doing this now?” 

Behind the scenes, Biden has reiterated to aides and confidants that he doesn’t believe in adding more justices to the bench, which is why he hasn’t had the desire to talk about the issue publicly and stir up Republicans. The Democratic nominee has previously opposed the matter saying it’s the sort of issue that could hurt Democrats when they’re not in power.

Allies say he wanted Barrett’s hearings to play out before weighing in.

“We didn’t answer because we don’t like talking about hypotheticals,” one Biden ally close to the campaign told The Hill earlier this week. “The campaign purely did not want to make it a topic until we need to get there. Barrett is still going through the process. Let’s wait till we get through this process.” 

And some Democrats say Biden has the right instincts to not want to discuss it before Election Day.

“If you are in favor of court packing you speak about it the Wednesday after Tuesday’s election,” said Democratic strategist Michael Trujillo, adding that Biden “is running an error free campaign and that means explicitly not answering questions like court packing.”

In addition to adding more judges to the bench, Sroka said he hopes Biden is “open to a whole range of different options” including age limits and term limits. 

“It should be an all of the above approach,” he said. 

But Basil Smikle, who served as the executive director of the New York Democratic Party, agreed with Sroka on trying to find other ways to “democratize the nomination and confirmation process” including term limits, which would “offset the influence of any particular party over long periods of time,” he doesn’t know if court packing is the answer.

Still, Smikle said he doesn’t know if court packing is the answer. 

“Ultimately the real solution is for voters to realize that elections have consequences and that for Democrats going forward, we should focus on opportunities to shape the courts the way Republicans have for decades,” he said.