In last week's Cleveland debate, Democratic nominee Joe Biden was asked if he supported progressive demands for ending the Senate filibuster and "packing" the Supreme Court to offset its conservative majority.

Biden sidestepped moderator Chris Wallace's question, contending, "Whatever position I take on that, that'll become the issue." He urged voters to tell their senators how they feel about it.

Correctly sensing his opponent's evasion, President Donald Trump asked him, "Why wouldn't you answer that question?" Then, Trump answered his own question: "You want to put a lot of Supreme Court justices. Radical left."

In fact, Biden is on the record opposing both moves. But the president was trying to widen a Democratic fault line between the former vice president and progressives who want the next Democratic administration to push those controversial moves to offset Trump's nomination of conservative Judge Amy Coney Barrett to the court.

When the issue was raised during the Democratic primaries, Biden opposed both scrapping the filibuster and adding justices. But that was before Justice Ruth Bader Ginsburg's death and Barrett's nomination renewed the saliency of the issue.

"We'll live to rue that day," he told Iowa Starting Line, a political website, last year. "We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all."

Though evasive, Biden's debate position on court "packing" made political sense, for at least four reasons.

• It's unpopular. A recent Washington Post-ABC News poll showed that only about one-third of adults favored increasing the number of justices to give the presidential winner more influence over its composition, while more than half were opposed. But a slight plurality of Democrats favored it.

• It's unlikely to happen, even if Democrats win the Senate. Any Democratic majority would be small. Besides, not every Democratic senator would favor scrapping the last vestige of the chamber's historic debate limitation rules, which lets opponents require 60 votes to debate or pass legislation. In recent years, senators scrapped the requirement on nominations, including judicial choices. Ending the filibuster on legislation would almost certainly be necessary to pass a bill expanding the court.

• A President Biden will have more immediate priorities. If elected, Biden will take office with the COVID-19 pandemic almost certainly still raging and the economy still needing governmental help. The last thing he will need is the distraction of a divisive fight on Senate rules and expanding the Supreme Court.

• It would exacerbate partisan divisions. Biden has often expressed the hope that, once elected, he could persuade some Republicans to support some of his economic and health initiatives to deal with the dire situation he is likely to inherit. But that's less likely if the year begins with a bitterly partisan debate over expanding the Supreme Court.

The last serious attempt to expand the court came in 1937 when President Franklin D. Roosevelt, newly reelected with large congressional majorities, proposed legislation to allow him to add up to six younger justices to break the power of an aging conservative majority that had ruled several of his New Deal initiatives unconstitutional.

He failed spectacularly, but some court conservatives began to modify their positions or retire, soon enabling him to install a liberal majority that was to control the court for the next 35 years.

What has frustrated the Democrats, even before Ginsburg's recent death, is that, even though they have held the presidency for 28 of the last 60 years, Democratic presidents have only made four of the last 20 high court nominations.

Part of that has been just bad luck – President Jimmy Carter had no vacancies in four years, while Trump has had three. But part of it stems from the way Republican Senate Majority Leader Mitch McConnell refused to consider Democratic President Barack Obama's choice of Judge Merrick Garland for a 2016 vacancy but is moving quickly to install Trump's pick of Barrett just weeks before the 2020 election.

Democrats have also become increasingly frustrated by the fact that the Constitutional allocation of two senators per state increasingly means that GOP lawmakers from states with a minority of Americans control the Senate, affecting both judicial nominations and allocation of government funds.

Besides enacting filibuster reform, one potentially less controversial way to enhance Democratic strength would be for the Senate to accept House-passed legislation to grant long overdue statehood to the District of Columbia. But the fact that its two senators would almost certainly be Democrats may keep few if any Republicans from backing it.

That issue could come up in a Democratic Senate next year with Biden's support. But it also seems unlikely to get higher priority than the country's health and economic problems.

Meanwhile, Biden is likely to keep avoiding divisive issues like the court and the Green New Deal that would weaken the Democratic Party unity that is helping him in the current election. Recent polls show him getting a higher percentage of Democrats than Trump is getting Republicans.

Ultimately, if elected, he may be forced to deal with them. But for now, party progressives too give priority to the goal of beating Trump.

Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Readers may write to him via email at: carl.p.leubsdorf@gmail.com.

(29) comments

DickD

What is needed is a Constitutional amendment that sets the SCOTUS at a specific number. While Biden is right, why would anyone expect Republicans to be fair about anything. .They could pack the court too even if the Democrats don't this time . Why trust them? Also there should be a specified term; not a life long time. Some become senile and in physical bad health.

While they are at it; get rid of the Electoral College.

jerseygrl42

unfortunately Carl, the words "wise" and "biden"...just do not fit well, Biden in 47 years of do little except fattening his and son's wallet while doing nothing of value for the citizens does not make him wise...he is just another" flip flop[per" who cares about nothing but himself...he will lose big time

public-redux

I’m collecting predictions. Are you willing to put some numbers to “he will lose big time”. So far the biggest prediction for a Trump victory is 401 EC votes.

DickD

They must not have much faith in Trump. Gladys

DickD

And who has his whole family milking our taxes while he pays none.

micky

Elect us and then we'll tell you what we are going to do. Sounds familiar !!

bosco

Cast a ballot for Harris-Biden and cast a vote for:

Packing the supreme court

Banning fracking

Free health care for illegal aliens

No more private health insurance

Repeal Trump tax cuts

Higher taxes on businesses

Open borders/Ban ICE

DC statehood

Puerto Rico statehood

Think not? Google Biden-Sanders Unity Task Force Recommendations.

threecents

Those are not Biden's positions, and that is not Biden's web site. Try listening to the debates or going to Biden's website if you want accurate information. But I don't think accuracy has every been near the top of your wish list.

bosco

I have been listening to Biden and he keeps flip flopping. Will he pack the supreme court? Is he for fracking or not? Is he for defunding the police or not? Is he for free health care for illegal aliens - he pledged that he was for it at the Democrat debate - or not? Is Harris still for abolishing private health insurance or not. Hard to tell with the flip flop twins.

Have you bothered to read the "manifesto" on his website? All 110 pages?

[ninja]

threecents

Bosco, Obviously you need help. Is he for packing the court? He said he will leave that up to the voters. Is he for fracking? He will not stop fracking, but he would like to develop alternative energy sources. Is he for free health care for undocumented workers? No, he is for health insurance for everyone - for expanding Obamacare to include a medicare-like option. Is Harris for abolishing health insurance? She is deferring to Biden.

threecents

I missed the defunding police question. No, Biden made it clear he is against defunding police, though he is for police reforms. Basically, he is a moderate and always has been.

bosco

threecents sez "Bosco, Obviously you need help. Is he for packing the court? He said he will leave that up to the voters. Is he for fracking? He will not stop fracking, but he would like to develop alternative energy sources. Is he for free health care for undocumented workers? No, he is for health insurance for everyone - for expanding Obamacare to include a medicare-like option. Is Harris for abolishing health insurance? She is deferring to Biden."

Somebody needs to help Biden. What does he mean when he says he'll leave packing the supreme court up to the voters? Is that a yes or a no?

On January 20, 2020, Biden told a voter in New Hampshire in a televised event that he would absolutely ban fracking. Is that a yes or a no?

Defunding the police - in a July 8, 2020 interview with activist Ady Barkin he said he would absolutely "redirect" money from the police. Redirect/defund. What's the difference?

Free health care for illegal alien - at one of the Democrat candidate debates EVERY one of those on stage, including Biden, raised their hand to support giving free health care to illegal aliens. Does "for all" exclude free health care to illegal aliens or not?

Abolishing private health insurance - On the second night of the Democrat debates, Harris raised her hand when asked who would abolish private health insurance. Will the Harris-Biden ticket ban private health insurance?

The Wall Street Journal has a short summary of the Bernie-Biden manifesto and the full 100 pages is on Biden's website. Maybe Biden should read it so that he'll know what his position on the issues is.

https://www.wsj.com/articles/the-biden-sanders-manifesto-11596131322

[ninja]

phydeaux994

Speaking of ANSWERING THE QUESTIONS bosco, seems like you’re doing a lot more dodging than Joe Biden. Did you think we’d forget if you laid low for a few days? Anyway, welcome back. Peace ✌️😷

bosco

It would be hard to dodge more than Biden. I've been very busy in the real world and not this FNP virtual world. It gets tiresome after several months of lockdown. I see you missed me. I'll return your wish for peace with a hearty slainte. 😷

public-redux

Since my household saw our income taxes go up thanks to the Trump tax “cuts”, I’d love to see them repealed.

threecents

He wants to let the voters decide. Sound familiar?

pdl603

Is it wise or will he do like every other democrat president say one thing to get elected and do the opposite when in office? Bidenz has flip-ffffloped on fracking, riots, defunding police, etc..

bosco

It's hard to run in flip flops

[ninja]

Greg F

Tell that to graham. It's also hard to do much of anything when you're all 'roided up and acting even more like a raging lunatic

public-redux

It’s hard to run when just standing on a balcony has you gasping for breath.

DickD

He did raise his thumbs, Gladys. [lol]

Greg F

Gee piddle....did you not forget Lindsay Graham....USE MY WORDS AGAINST ME in his appeal not to ever let a SCOTUS nominee happen this close to election? Build a wall? Anyone? Bueller? Trump's Healthcare Plan? Um......none as of today. Lower taxes? Only for the uber-rich thanks to the giveaway. Yup, piddle, once again, you fail to see your guy and party for what they are.

NewMarketParent

@Greg F

Exactly. I'm trying to remember the last time a conservative ran on a completely open platform. Usually they run on a wedge issue and then use their win to run roughshod over their constituents.

jerseygrl42

Clueless

bosco

Wasn't it just a few years ago? www.promiseskept.com.

[ninja]

jerseygrl42

you got that right...but biden did do a great job of filling his and son's wallet...got to hand that to him!

phydeaux994

Trump’s Dad gave him $400,000,000. Donald and Hunter should write a book together.

phydeaux994

Last 5 Administrations.... Dems 2 Winners, Reps 3 losers. Biden has NEVER said he supported any of those things. If you have evidence to the contrary, post the links, otherwise.....🙊back under the covers. Vote for Biden and America, not for Trump and Tyranny. Trump’s Quote of the Day...”I’m CURED”!!🤒

DickD

How would a Donald Trump supporter know anything about flip flopping?

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