Democrats’ Silence on Court Packing Could Cost Them Senate Control
Joe Biden refuses to answer questions about whether he and his party would support the Supreme Court packing and ending the Senate filibuster. In fact, a reporter said to him on Friday, "Sir, I have to ask you if you should pack the dishes. I know that you said yesterday that you will not answer the question until after the election. But this is it Number 1 that the audience has asked me about in the past few days.... Didn't voters deserve to know where you stand? "
Biden replied, "No, they don't deserve it - I'm not going to play his [Trump] game."
Biden appears to believe that all he has to do to occupy the Oval Office in January is running out of time and avoiding pissing off his activist left supporters right before the election.
Packing in court may not be the crucial issue in the president's race. But it could be in tight Senate races, in which several Democratic candidates imitate Biden's silence and are beaten up for it by effective GOP opponents.
In Maine, Democratic nominee Sara Gideon isn't ruling out supporting a trial plan. Colorado Democrat John Hickenlooper gave an embarrassing response in his debate with Republican Senator Cory Gardner last week. Iowa Democrat Theresa Greenfield was once against packing in court, but can no longer be pegged on the subject in her race against GOP Senator Joni Ernst.
The chances of Democrats winning a Senate majority for Democrats are in the air because of the court packaging.
The irony is that their candidates take all this abuse off of an idea that is unlikely. Still, it can cost them control of the Senate.
Let's look at the state of the races in the Senate. Democratic Senator Doug Jones is following his GOP opponent in Alabama poorly. This is a place away. Michigan Democratic Senator Gary Peters is up only 47 to 44 percent in the latest CBS Battleground poll. This is an endangered place. Republicans have a long chance of winning in Minnesota, where Democratic Senator Tina Smith is 8.5 points ahead of the RealClearPolitics polls average.
Let's say Democrats lose Alabama and keep Michigan and Minnesota. You must take back four seats held by the GOP to win a Senate tie. That tie could then be broken by Kamala Harris if the Biden Harris ticket wins.
But with only 50 Senators, Democrats would need the vote of West Virginia’s Joe Manchin to pass the trial and end the filibuster. Manchin is a moderate democrat who may not be under pressure. He cannot be re-elected until 2024, when he is 77 and may retire. Manchin has stated bluntly that he is against packing in court and the abolition of the filibuster. Arizona Democratic Senator Kyrsten Sinema has also said she opposes packing in court.
If the filibuster persists, Democrats are unlikely to pass legislation allowing either the District of Columbia or Puerto Rico as a state to attract additional Senators.
And if they don't destroy the filibuster, the Democrats can defeat their other liberal legislative priorities like the Biden version of the Green New Deal, gun control, taxpayer funding for campaigns, restricting independent political speech and weakening the protection of electoral integrity not push forward.
It would be difficult for Democrats to go through a McConnell majority leader for Senate endorsement of every judge and cabinet member.
But Democrats would find it almost as painful to deal with Joe Manchin as the Senate swing vote. There aren't enough pork barrels that can be shipped to West Virginia to try and hire Joe Manchin's voice on big issues.
In order to rule without Manchin's vote and be able to implement their agenda, Democrats need at least 51 senators. So assuming a loss in Alabama, you have to beat five Republican incumbents.
Democrats believe there are three races they are likely to win: Maine, Colorado, and Arizona.
But they have to win at least two of the next six races. It may not be easy.
The North Carolina Senate race was troubled by reports that Democratic nominee Cal Cunningham, a Lieutenant Colonel in the Army Reserve, was having an affair with the wife of Jeremy Todd, a junior officer with whom he was working. The US Army Reserve Command is investigating Cunningham for a possible violation of the Code of Military Justice. Todd asked Cunningham to leave the race.
South Carolina, Georgia, Iowa, Montana, and Alaska are the other races that Democrats could cause a stir.
But five of those six races are in deep red states, which consistently vote Republicans in most statewide elections.
Iowa is a swing state where anything can happen.
Republicans in all six states are telling voters that a Senate Democratic majority will unleash plans to grab the Supreme Court, undermine Second Amendment rights, edict the Green New Deal through, and impose a radical cultural agenda.
Democrats who might be able to beat an incumbent GOP when it came to other issues might lose if the race focuses on an idea as unpopular as packing in court.
Moderate voters who are considering voting for Biden because they don't like Trump may be scared of the radical idea of grabbing the Supreme Court.
If Biden were a less cautious and less party-trained politician, he might reconsider his silence about packing in court. He could take a lesson from Bill Clinton, who convinced moderate voters he wasn't a jerky liberal when he condemned rapper "Sister Souljah" for their anti-police lyrics.
After all, Biden was in two democratic-primary debates against packing in court last year. He would simply return to a position he has held for more than 15 years.
But I assume he won't. He has repeatedly shown the inability to break with the grassroots of his party.
But what will happen if key Democratic Senate candidates take the same stance as Biden despite running in largely red states? The last time Franklin Roosevelt tried to pack in court in 1937 aroused passionate opposition and helped the Democrats lose eight Senate seats and 62 house seats in the 1938 midterm election.
Nationwide, only 34 percent of registered voters in a new YouGov poll support expanding the number of Supreme Court judges. In red states, where Democrats must beat the GOP incumbents, support for such an extreme idea is well below.
Indeed, polls show strong support for an amendment to "Keep Nine" that simply says, "The United States Supreme Court should consist of nine judges." The change was approved by nine former Democratic attorneys general. Three of these former AGs recently wrote in the New York Daily News that, when it comes to court wrapping, “we can imagine few threats more grave to the future of the constitutional control our republic has preserved over the past two centuries. “They reminded their readers that the late Ruth Bader Ginsburg described the increase in the number of Supreme Court judges as a“ bad idea ”.
The silent Senate candidates running for Democrats this year are unlikely to break with Biden and resist the trial. Biden apparently believes he can get away with his evasive maneuvers. But it could be a different story for his fellow Democrats.
If the Democrats vote for Joe Biden, they will have managed to turn the presidential race into a referendum on President Trump's personality. If they fail to win the Senate, however, it is because of an issue they have carefully avoided supporting on their party platform: overturning a 151-year tradition of having nine Supreme Court justices.
By stubbornly remaining silent about something that wasn't even on their agenda a few months ago, they can convince voters that they are really the radicals they are being accused of. It could cost them the Senate.
More from National Review
A bargain on the Supreme Court?
The left plan to empower Trump
Schumer's empty filibuster threat
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