Kamala Harris really should have answered that question about packing the court

Brad Polumbo
·4-min read

Wednesday evening’s vice presidential debate between Sen. Kamala Harris and Vice President Mike Pence was a refreshingly civil exchange of ideas, especially in light of the calamity that was last week’s debate between President Trump and Joe Biden. But despite the milder tone of events, gravely serious ideas were discussed. In perhaps the night’s most memorable moment, Pence pressed Harris on her campaign’s refusal to rule out the dangerous notion of “packing” the Supreme Court with liberal judges.

“I think the American people really deserve an answer, Senator Harris,” Pence said. “Your party is actually advocating adding seats to the Supreme Court, which has had nine seats for 150 years, if you don’t get your way. If you can’t win by the rules, you’re going to change the rules.”

The VP was likely citing the fact that top Democrats such as former Attorney General Eric Holder, Sen. Ed Markey, and Rep. Jerry Nadler have openly embraced the position.

“If Judge Amy Coney Barrett is confirmed to the Supreme Court of the United States, are you and Joe Biden… going to pack the Supreme Court to get your way?” Pence asked again.

Harris dodged the question, and Pence interrupted: “I’d like you to answer the question.”

She never did.

“If you haven’t figured it out yet, the straight answer is that they’re going to [do it],” Pence concluded in another interjection. “If you cherish our Supreme Court, if you cherish the separation of powers, you need to reject the Biden-Harris ticket.”

We don’t know for sure whether a Biden-Harris administration would actually do it, but Pence was right to bring this crucial question up. Americans of all political persuasions should reject court-packing as the authoritarian tactic that it is, and find the Democratic ticket’s dodge concerning.

Here’s why.

The American political system depends on checks and balances. These restraints are what preserve our democracy and protect our way of government from abuse. The judicial system is supposed to serve as a check on what the legislative and executive branches can do, ensuring that they stay within the bounds of the law.

The Constitution does not officially set the number of Supreme Court justices, even though it has remained at nine since 1869. So, court-packing would not technically be illegal or unconstitutional if done through legislation passed by Congress and signed into law by the president.

But it’s still politically dangerous and, I would argue, morally wrong. When the legislative and executive branches team up to “pack” a court with like-minded judges that will rubber-stamp their agenda, they are rewriting the rules of the system to circumvent constraints on their power.

Even worse, court-packing would start a dangerous cycle that likely ends with the total collapse of the Supreme Court as a legitimate institution.

“If the Democrats pack the court, the GOP will respond in kind, as soon as they get the chance,” George Mason University law professor Ilya Somin has explained. “The predictable result will not only be a loss of ‘credibility’ for the Supreme Court, but also the elimination of judicial review as an effective check on the other branches of government.”

“If the president can pack the court any time his or her party controls both houses of Congress, they can prevent the court from making decisions that curb unconstitutional policies they may wish to enact,” Somin concludes. “It is no accident that court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela.”

Packing the court is a really bad idea. And you don’t just have to take it from a conservative like me — no less a liberal luminary than the late Supreme Court Justice Ruth Bader Ginsburg said the same.

Pence was clearly right to hit Harris on court-packing on the merits, but it was also a shrewd political line of attack. According to Pew Research, 64 percent of voters say Supreme Court appointments are a top voting issue for them. And even if Trump’s nominee is confirmed, polling shows that only 34 percent of Americans believe that Democrats should respond by packing the Supreme Court.

Of course, Joe Biden is still way ahead in the polls. But with his debate-stage attack on the Biden-Harris campaign’s refusal to condemn court-packing, Mike Pence found both a moral and political victory.

Brad Polumbo (@Brad_Polumbo) is a conservative American journalist and host of the Breaking Boundaries podcast