I don’t know how much the voters care, but I thought it unfortunate that Kamala Harris ducked the question Pence insistently posed to her: would Joe Biden seek to pack the Supreme Court?  The correct response was not to dodge the issue but to refuse to answer, righteously and defiantly.  I would have liked to hear her say something like this:

You talk about packing the Supreme Court? That’s already happening. A president elected against the wishes of a majority of voters has placed two extreme right-wing jurists on the Court, and now wants to ram through a third, all three of them tainted in one way or another.  You can ask me about Court packing only if you’re willing to join the majority of the American people in opposing the nomination of a new justice before the people make their choice of president next month. Mitch McConnell and Donald Trump have done far more to torpedo the legitimacy of the Court than Joe Biden could ever do.  But now, having broken all the rules you demand that Joe Biden honor the rules and accept a radical right-wing dominance of the Court for the next generation.  No, sorry, we don’t engage in unilateral disarmament—that’s not our thing.  An activist, reactionary Court that tries to undo important and necessary work of the Biden administration for the American people will not be acceptable.  So, we’ll see whether the tenuous legitimacy of the Court can hold up or whether some kind of reform will be necessary. No promises.


  1. Frank October 8, 2020 at 7:59 pm

    Beautifully expressed! But as you know, court packing is not easy, as FDR discovered in 1937, after the greatest electoral victory in the history of the nation. Even many Dems opposed it.

  2. tonygreco October 8, 2020 at 10:15 pm

    I recognize that a Court-packing proposal might not become expedient politically, but I’m glad Biden et. al. haven’t pledged not to try it. A threat can be effective even if it’s never executed. The possibility of Court reform might exercise a restraining influence on some of the justices. It worked that way for FDR: the Court already started reversing its course before his Court-packing proposal got voted down. It was the “switch in time that saved nine.”

  3. Art Schmidt October 9, 2020 at 1:30 am

    I’m reluctant to snipe at the Biden-Harris campaign, which has been surprisingly sure-footed so far, but this question will keep coming up as long as they keep ducking it. If he’s not willing to go Full Greco, he can borrow Schumer’s quite adequate answer: “I’m not taking anything off the table.”

    That probably still makes Biden sound more radical than he is. Besides, packing the Court won’t be up to him, it’ll be up to the 51st least liberal Democratic senator (Manchin? Sinema? Feinstein?) Realistically, I’m afraid our new 6-3 Court will have to hold a lot of progressive legislation unconstitutional before Congress is willing to expand it. So let’s see if we can get that legislation passed in the first place.

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