Tom Spencer: Joe Biden’s Refusal to Articulate His Vision for the Supreme Court is an Insult to Voters

Former Vice President Joe Biden says he wants the American people to weigh in on the future of the Supreme Court by voting, yet he steadfastly refuses to say what we would actually get if we were to vote for him.

Asked point-blank whether he would go along with the “court packing” scheme suggested by a number of prominent Democrats — which involves expanding the number of justices on the court with the explicit intention of negating the influence of President Donald Trump’s appointees — Biden gave one of the most transparently nonsensical answers in the history of presidential debates.

“Whatever position I take on that, that’ll become the issue,” Biden said, echoing U.S. House Speaker Nancy Pelosi’s, D-Calif., infamous declaration that the American people would be able to see what was in Obamacare only after Congress passed the legislation.

“The issue is the American people should speak,” Biden continued, doing his best impression of someone who actually cares what the people think. “You should go out and vote. You’re in voting, now vote and let your senators know how strongly you feel. But vote now.”

The most charitable possible interpretation is that Biden was pawning off the responsibility for taking a stand on the issue to the 35 Democrats running for U.S. Senate — in other words, he was brazenly and unambiguously refusing to answer a simple and straightforward question about a critically important issue with the potential to impact this country for generations.

That’s an act of political cowardice, to be sure — and it’s particularly infuriating in light of Biden’s insistence that Trump should abdicate his constitutional duty to nominate a successor to the recently-deceased Justice Ruth Bader Ginsburg and allow the seat to be filled by whoever wins the upcoming presidential election. Yet, while Biden says he wants to make the 2020 election a referendum on who should nominate the next Supreme Court justice, he himself adamantly refused to reveal which candidate or candidates he would even consider for the role.

“Anyone put on a list like that under these circumstances will be subject to unrelenting political attacks, because any nominee I would select would not get a hearing until 2021 at the earliest,” Biden said. “She would endure those attacks for months on end without being able to defend herself.”

Despite his refusal to answer a direct question that is on the minds of voters all over the country, the former vice president’s response was informative in some respects.

For one thing, Biden reminded us that his position entails leaving the Supreme Court short-handed for an indeterminate period of time — at least a month if Trump is reelected, or a minimum of nearly four months if the nomination has to be punted off until after Inauguration Day.

Biden also unintentionally revealed that anyone he might nominate would be utterly unsuited for the frequently contentious world of high-stakes national politics — something every Supreme Court justice must occasionally navigate, particularly between their nomination and confirmation vote in the Senate. The indication that his hypothetical nominee would be unable to “defend herself” against political attacks suggests that the person would either be too timid to counter substantive criticisms or else that those criticisms would be so accurate and damning that refuting them would be a practical impossibility.

Based on Biden’s performance on both the campaign trail and the debate stage — characterized primarily by lack of assertiveness and fawning deference to the radical left — either possibility seems equally plausible.

Thomas R. Spencer has more than 40 years of legal experience and has appeared in every court of appeal in Florida and in the Supreme Court of Florida, the Florida Federal District Courts, the District Court of the District of Columbia, the Federal Courts for the 11th, 4th, 2nd and 5th Circuits as well as the Supreme Court of the United States. He also appeared before the International Court of Arbitration in Paris.


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