Why Biden needs to answer the court-packing question

Democratic presidential nominee Joe Biden's position on court packing is now absolutely clear: He does not want you to know his position.

"You'll know my position on court packing the day after the election," the former vice president told reporters on Thursday. His comments came a day after his running mate, Sen. Kamala Harris (D-Calif.), avoided the question at the vice presidential debate.

Biden's stance is fundamentally undemocratic. No, it isn't as big a sin against American democracy as President Trump's accumulated offenses, but it is a problem. Biden is openly and intentionally depriving voters of critical information about an important issue — which means they are left to guess his intentions, and perhaps get a big surprise on November 4. That's not how the process should work.

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But it is easier to try and win an election if you don't tell voters something they might not want to hear. And no matter what position Biden eventually takes on adding new justices to the Supreme Court — an action that would presumably give liberals a sudden advantage on the increasingly conservative court — he will alienate some of his prospective supporters. Court packing is popular with Democrats, but it isn't popular with voters more generally.

A new Washington Examiner/YouGov poll indicates that just 34 percent of independent voters — and 32 percent of independents — are in favor of adding justices to the court. That number zooms up to 60 percent for Democrats, however. That is no surprise. And presidential nominees often are challenged to find a balance between pleasing their party's voters while appealing to swing voters who might decide an election. The trick is not to make either side so unhappy that they decide not to cast a ballot.

Biden faces an additional challenge in 2020. He can't just win the election — he has to win big. If he wins the popular vote by a narrow margin, prognosticators believe Trump will win the Electoral College. A close election might also give Trump a chance to muddy the waters and claim victory for himself, no matter the actual vote tally. So Biden must build a coalition of voters so large that, if he wins, the repudiation of the current president is unmistakable both to Trump and his supporters.

So it is understandable that Biden doesn't want to reveal his plans for the court. That doesn't make it right.

Biden on Thursday said the media should focus instead on Trump's plans for the Supreme Court — and the GOP plan to get Amy Coney Barrett confirmed to replace Justice Ruth Bader Ginsburg either before Election Day, or at least by a potential Joe Biden inauguration in January. The court-packing question, he suggested, is a distraction.

"The moment I answer that question, the headline in every one of your papers will be about that rather than focusing on what's happening now," he said.

Barrett's nomination is a big, important issue. And the media isn't always great at walking and chewing gum at the same time. The problem, though, is that Biden's own plans for the court are inextricable from the current confirmation process. The "merits of court packing literally depend on what happens on election day and whether the Republicans rush to confirm Barrett despite Trump losing," Lawfare's Susan Hennessey tweeted.

Biden is skeptical of court-packing, the thinking goes, so if Barrett's nomination fails and he gets to name Ginsburg's replacement, he might be able to resist Democratic pressure on the issue. But if Barrett is confirmed and Democrats win the presidency and the Senate, the left will campaign to "rebalance" the court so that conservative justices can't emasculate and derail progressive priorities that would otherwise come out of a Biden administration.

In other words, Biden's real position on court-packing is probably: "It depends." Why not say so? The question isn't going away, after all.

Democracy works best when voters know who and what they're voting for, and when elected officials can be accountable both for their promises and acts. American democracy, you may have noticed, has been a bit fragile of late. Ducking the issues that voters care about — and the court's composition is not a minor matter to be fudged — doesn't help. Rehabilitating our institutions almost certainly requires rebuilding the faith of a disillusioned citizenry. Biden can help that effort by being forthcoming about his plans for the Supreme Court.

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