Joe Biden likes to say that he will “level with the American people,” but he is cagey about when he will do so and what he will level with us about.
When Biden promised CNN’s Jake Tapper last month that he will be “totally transparent in terms of my health and all aspects of my health,” he was talking about information he would release after the upcoming election. Let’s give Biden a pass on this – partly because Tapper framed his own softball question to the candidate this way, and thus avoided putting him on the spot, and partly because Biden’s opponent has hardly been a model of clarity about his own health. Neither of these two septuagenarian horses want anyone to examine their teeth too closely.
In the same interview, Biden made a more seemingly open-ended promise: “I’ll acknowledge my mistakes when I make them, and I’ll level with the American people.” He used similar language in a campaign speech a week later, talking specifically about the COVID-19 pandemic.
When it comes to the Supreme Court, however, Biden is going to almost comic lengths to avoid giving a straight answer to a simple question: If he is presented as president with legislation to expand the membership of the high court, will he sign it?
If he says yes, he will confirm Republican charges that Biden would enable a Democrat-controlled Congress to “pack” the court with liberals. This would defenestrate the 6-3 conservative majority that will be in place after the confirmation (expected, as of this writing, to happen today) of Justice Amy Coney Barrett. If Biden says no, many of his party’s most enthusiastic supporters will view him as somewhere between squishy and duplicitous.
Or Biden could stake out a principled position, declaring that he would sign such legislation only if it had an effective date in 2025, after the next presidential election. This would really be leveling with the American people. Biden would be telling us that if the court is to be expanded, we will have the final word on who should choose the new nominees – and it may not be Biden, whether or not it is a Democrat.
Although he has been circumspect about it, Biden has indicated he may not seek a second term. I’ll give him a pass, too, on that less-than-totally-transparent position. The reality is that nobody can really know if Biden will run again, especially at his age. Lyndon Johnson certainly expected to seek reelection when he stood for office in 1964, but events (notably the Vietnam War) dictated otherwise when 1968 rolled around.
However, Biden deserves no such leeway for his response to the Supreme Court’s future. After weeks of flatly refusing to say anything because it would become a campaign issue (as it would, because the Supreme Court is sort of important), Biden said in an interview taped for last night’s 60 Minutes broadcast that he would appoint a commission to study the entire federal judiciary, because it is getting “out of whack.”
It sounds like a joke, except Biden is not known to possess anything like that sharp and subtle a sense of humor. Appointing a commission is the time-honored dodge of politicians who do not want to take a position that could hurt them at the polls. It is the stuff of parody, not policy.
Beyond being a flat-out dodge, Biden’s proposal should be seen as a threat, not a joke. When he says the judiciary is “out of whack,” he means President Donald Trump and a GOP-controlled Senate have made it their mission to “leave no vacancy behind” in confirming conservative judges to the bench. This, of course, follows the self-destructive move of former Senate Majority Leader Harry Reid. Reid eliminated the filibuster for judgeships below the Supreme Court level for the precise purpose of letting then-President Barack Obama do exactly the same thing, before Reid’s party lost its Senate majority in the 2014 elections.
Now that their first effort to load the bench with their preferred flavor of judges backfired, Democrats want nothing more than to send the game they lost into overtime, provided they are guaranteed control of the ball.
Biden is neither wrong nor alone in sensing the political peril of the moment. It was evident last Thursday, when all 10 Democrats on the Senate Judiciary Committee – including Biden’s running mate – boycotted the vote that advanced Barrett’s nomination to the floor. This was a matter of principle. Not the principle by which they said Republicans were behaving disreputably in pushing through Barrett’s nomination just before the election. The timing did not stop any of the Democrats from using her confirmation hearing for grandstanding.
The principle they honored is that you never give your opposition a video clip that can be used in a campaign ad against you. Barrett’s nomination has considerable support among independents as well as Republicans. Casting a vote against her in committee was a spotlight the Democrats preferred to avoid. There will be greater safety in numbers on the Senate floor.
Biden’s approach to transparency is far from a profile in courage. Maybe that is too much to expect from a political lifer whose primary platform plank is “I’m not Donald Trump.” As for what he would do with a co-equal branch of government, the one charged with defining and defending constitutional principles and the rule of law from transient and partisan passions, he promises to level with us – after the election is over. Maybe after his proposed commission provides some cover, too. That’s about as transparently political as he can get.