Skip to main content
You have permission to edit this article.
Biden keeps SCOTUS list secret, refuses to disavow court-packing scheme

Biden keeps SCOTUS list secret, refuses to disavow court-packing scheme

  • 0

In a few days, we'll know who President Trump wants to be the next Supreme Court justice. Republicans will praise her qualifications, her intellect, her judicial temperament. Democrats will oppose. There will be an opportunity for a real debate: Should the president's nominee be confirmed to the nation's highest court?

The nomination will also highlight an enormous difference between Trump and Democratic presidential candidate Joe Biden. Trump's choice for the court will be out there for all to see, while Biden refuses to reveal even a list of people he would consider nominating, should he win the presidency.

Beyond that, there lies the growing threat from some Democrats that if Trump's nominee is confirmed, and if Biden wins the election, and if Democrats win the Senate and House, then Democrats will add some number of justices to the Supreme Court -- pack the court -- to ensure its liberal tilt. It's an enormous issue for the Supreme Court and its role in American governance. And now, Biden won't say where he stands on that, either.

Biden campaigned in Manitowoc, Wisconsin, on Monday. He did an interview with local television station WBAY in which reporter Brittany Schmidt asked him: "President Trump is expected to announce his pick for Supreme Court later this weekend. You've said you won't announce yours, but does that news change your decision?"

"Not at all," Biden answered. "No president has ever announced his picks that early. Number two, if I were to do that, I find myself in a position where they would be subject to intense criticism for a long time, because if I am elected and enough Republicans screw up the courage to say, 'Let's wait until the election is over and see who wins,' if I were picked they wouldn't get a hearing until sometime at the end of January, beginning of February, and it's just not appropriate to put them in that spot."

Of course, in 2016, with a Supreme Court seat open, candidate Donald Trump released a list of candidates for the court and promised to pick a nominee from that list. Doing that helped him solidify his bond to a Republican base, for whom the court is a huge issue. Then, when elected, Trump kept that promise, and the bond became even stronger. Now, there is no reason Biden could not release his own list of candidates for the court.

But Biden is afraid his choices will be criticized. Well, of course they will! That's part of the process of confirming a Supreme Court justice. Who would know that better than Joe Biden? For years, he served as chairman of the Senate Judiciary Committee. He presided over his party's brutal nomination attacks on Justice Clarence Thomas. Now, he's afraid that if he names even a list of possible nominees, they will be criticized.

And then, in that WBAY interview, Biden would not renounce Democratic court-packing schemes. Schmidt asked: "If Trump's Supreme Court pick goes through but you win the election, Democrats take over the Senate and maintain the House, would you consider adding more Supreme Court justices to the bench?"

Biden, who last year said he opposed such schemes, refused to answer. "It's a legitimate question," he said. "But let me tell you why I'm not going to answer that question. Because it will shift the whole focus, that's what he [Trump] wants, he never wants to talk about the issue at hand; he always tries to change the subject. Let's say I answer that question. Then the whole debate's going to be, well, Biden said or didn't say, Biden said he would or wouldn't. The discussion should be about why he is moving in a direction that's totally inconsistent with what the Founders wanted. The Constitution says ... voters get to pick a president who gets to make the pick, and the Senate gets to decide. We're in the middle of an election right now, you know, people are voting now. By the time this Supreme Court hearing would be held, if they hold one, it's estimated 30% to 40% of the American people already have voted. It is a fundamental breach of constitutional principle. It must stay on that and it shouldn't happen."

It was a mind-boggling answer. If I take a position, Biden said, then people will talk about it. Well, yes, they will. There's a presidential campaign going on. Biden is the Democratic Party candidate. A Supreme Court justice has died, leaving a critical vacancy. Of course voters want to know who each candidate would pick. And if one party is threatening judicial Armageddon -- packing the court -- then voters want to know where the candidates stand on that, too.

So far, though, Joe Biden remains steadfastly silent. And that leads to one more question -- whether he can keep his thoughts secret until Election Day.

Byron York is chief political correspondent for The Washington Examiner.


Catch the latest in Opinion

* I understand and agree that registration on or use of this site constitutes agreement to its user agreement and privacy policy.

Related to this story

Most Popular

Every day, some new poll is published showing Democratic challenger Joe Biden with a big lead over President Donald Trump. Some Trump supporte…

The presidential election could be decided by one word: Trust. Who do voters trust to tell them the truth? To keep their families safe? To han…

Sen. John Cornyn of Texas, a staunch Trump ally, said this about the president's handling of the COVID-19 pandemic: "I think the biggest mista…

Get up-to-the-minute news sent straight to your device.


News Alerts

Breaking News