Joe Biden should stop ducking the court-packing issue

Republicans seek to put Amy Coney Barrett on the Supreme Court, even though it’s an election year, after having blocked the confirmation of Merrick Garland in 2016 because it was an election year. Democrats fume over the “blatant hypocrisy” of the Republicans, who insist that they are engaged in an entirely principled exercise. It all brings to mind a scene from that great western movie “Butch Cassidy and the Sundance Kid.”

A member of Butch Cassidy’s Hole in the Wall Gang, a giant of a man named Harvey Logan, challenges Butch (played by Paul Newman) to a knife fight to decide who should be the gang’s leader. Butch tells the other gang members that he’s willing to fight, “but not ‘til me and Harvey get all the rules straightened out.”

“Rules?” asks an astonished Harvey, who lets down his guard. “In a knife fight? No rules!”    

Butch takes advantage of Harvey’s distraction to kick him squarely in the — well, Butch won the fight.   

Let’s just honestly acknowledge that Supreme Court confirmations are political knife fights. Democrats can then stop saying that we’re shocked, shocked, that there were no rules, at least none that benefitted them, in the fights over the Barrett and Garland nominations. Republicans can stop pretending that there is a principled way to reconcile blocking Garland with nominating Barrett in successive election years. 

Anticipating Barrett’s confirmation, some progressive Democrats want to pick another knife fight. Sen. Ed Markey (D-Mass.), for example, proposes “expanding the Supreme Court” (also called “court-packing”) if Democrats regain the White House and the Senate so that a President Joe Biden can appoint more liberal justices. It’s now such a live issue that, during the first presidential debate, President Trump pressed Democratic presidential nominee Biden on whether he supported court-packing. Biden forthrightly ducked by saying “I am not going to answer that question.” (His running mate, Sen. Kamala Harris (D-Calif.), says she is open to it).

The first rule of knife fights, though, is that you shouldn’t start one unless you have good prospects of winning. And court-packing is a fight that Democrats can’t win.

We know that because a dominating Democratic president once tried it and lost badly. In 1937, after the Supreme Court had struck down several critical pieces of New Deal legislation, FDR proposed a court-packing plan that would have added a justice for every justice on the court over the age of 70. Under the plan, FDR could have appointed six more justices.   

FDR had just won a landslide reelection in 1936, and Democrats had commanding majorities in the Senate and House. Even so, his own supporters, including FDR’s vice-president, deserted him on this issue. A newspaper cartoon depicted the six new justices as FDR’s ventriloquist dummies. He was forced to withdraw the plan.    

Even if a President Biden could succeed in expanding the number of justices, sooner or later the Republicans would regain power and employ some other Machiavellian maneuver to restore conservative sway on the Supreme Court (remember this is a knife fight). The loser would be the court.  

Progressive Democrats should take note that no less a figure than the late Justice Ruth Bader Ginsburg, whose seat Barrett would fill, opposed court-packing. In an interview last year, Ginsburg said that FDR’s court-packing plan was a “bad idea” in 1937 and no less a bad idea today because “it would make the court look partisan,” i.e., like a ventriloquist’s dummies. 

Even Biden once opposed court-packing. In 2019 he told an Iowa newspaper that “I’m not prepared to go on and try to pack the court because we’ll live to rue that day.”

He should say that now and put an end to a terrible idea that will only bring political grief to the Democrats, just as it did to FDR.  

Gregory J. Wallance, a writer in New York City, was a federal prosecutor during the Carter and Reagan administrations. He is the author of “America’s Soul in the Balance: The Holocaust, FDR’s State Department, and The Moral Disgrace of an American Aristocracy.” Follow him on Twitter at @gregorywallance.