Biden's 'Unconstitutional' Game | Opinion

Another day, another crazy way Joe Biden tries to get out of answering a simple question.

When asked by reporters on October 10 whether, if elected, he would seek to create additional Supreme Court seats, a radical plan known as "court packing," the former vice president replied that "[i]t's not constitutional what they're doing." This baffling response apparently refers to President Trump and Senate Republicans, who are working to confirm Judge Amy Coney Barrett to the Supreme Court.

This clip spread quickly, and it is easy to see why. Many Democrats have condemned Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Lindsey Graham's plan to confirm Judge Barrett before the election, using adjectives like "wrong," "hypocritical," "shameful" and "stupid." While these comments have no basis regarding a confirmation timeframe comparable to those of many justices who came before her, "unconstitutional" carries far more serious implications. Biden must explain what he meant by this allegation.

President Trump nominated Judge Barrett on September 26 to fill the vacancy caused by the passing of Justice Ruth Bader Ginsburg on September 18. Senate Republicans have scheduled a hearing that began on October 12, with confirmation by the full Senate by the end of the month. This schedule is not far off the confirmation of Justice Ginsburg herself—a process that took 42 days.

What, exactly, is "unconstitutional" about this process? Does Biden believe that the president violated the Constitution with the mere nomination? Does he believe that Senate Republicans holding a hearing on this nomination is itself unconstitutional? Or does he believe that a floor vote would be unconstitutional? What if Judge Barrett's nomination were rejected? Would the Senate still have, in Biden's view, violated the Constitution? Or does Biden believe that the confirmation of Judge Barrett would be unconstitutional?

Even after confirmation, more steps will have yet to come before Judge Barrett takes her Supreme Court seat. Would President Trump violate the Constitution by signing Judge Barrett's commission? Would Judge Barrett violate the Constitution by taking the required oaths? Would Chief Justice Roberts violate the Constitution by administering the oaths? Only Biden can provide these answers.

The implications of Biden's claim, however, do not end here. Americans have an election on the horizon, just over three weeks away. Many in the media have asked President Trump whether he will step aside, should Biden win the election, but few have asked the question the other way around. What if a question about the election makes its way to the Supreme Court and, in a 5-4 ruling with Justice Barrett in the majority, the Court issues a decision that effectively ends the election in favor of President Trump? The Supreme Court had to answer this exact question just 20 years ago, in Bush v. Gore.

Democratic presidential candidate Joe Biden
Democratic presidential candidate Joe Biden Chip Somodevilla/Getty Images

Biden needs to answer: In the event such a decision arises, will he respect the Court's decision, or will he make baseless claims about its constitutionality? If he believes Judge Barrett's appointment is itself somehow unconstitutional, how could he say otherwise?

What if Biden wins the presidency but Republicans keep the Senate, thereby ending any hopes Democrats would have to pack the Supreme Court. If a five-justice majority, including Justice Barrett, strikes down a Biden executive order such as a national mask mandate or gun restrictions, will he abide by the Court's ruling?

Many critics of President Trump have wrongly labeled him a fascist, a dictator, a tyrant (including one of the anarchists involved in the plot to kidnap Michigan Governor Gretchen Whitmer), a despot and Joseph Goebbels (that one from Biden himself). President Trump has criticized judges, to be sure, but he has not disregarded court orders. He has followed the process, appealing unfavorable rulings and requesting stays of orders pending appeal.

Biden has, with his declaration of unconstitutionality, opened the door to the question of whether he will act as President Trump has. If he truly believes that Justice Barrett's confirmation and appointment would be unconstitutional, how could he agree to abide by the various orders swayed by her deciding vote?

Democrats' desire to fill this seat, one previously held by their biggest champion on the bench, is understandable. But the fact is that Republicans control the White House and the Senate, and are perfectly within their rights to confirm the justice of the president's choosing. This is not packing the court; it is filling a vacancy under the process provided for by the Constitution.

Biden has refused to answer the question of whether he would pack the Supreme Court, creating more vacancies that he could fill. In avoiding answering this question, he says that doing so would be playing "Trump's game." But any question related to Biden's assertion of unconstitutionality with respect to the Barrett nomination would have nothing to do with "Trump's game"; rather, it would be all about "Biden's game." It is a game that Biden has unwisely chosen to play; it is now up to honest media and the American people to make him answer for it.

Michael R. Davis is the president and founder of the Article III Project (A3P). He previously served as chief counsel for nominations to former Senate Judiciary Chairman Charles E. Grassley (R-IA), where he served as the staff leader during Justice Brett M. Kavanaugh's confirmation process. Davis also clerked on the Supreme Court for Justice Neil M. Gorsuch.

The views expressed in this article are the writer's own.