In a gaggle with journalists the day after the vice presidential debate, Joe Biden told reporters: “You’ll know my opinion on court-packing when the election is over.”
It seems we’ve moved beyond simple dodges on the issue of court-packing, where Biden or his running mate, Kamala Harris, refused to answer basic questions. Now, they’re reading the stage directions or outright fabricating history, as Harris did against Mike Pence on Wednesday night.
If that Biden line sounds familiar, it should. It rhymes distinctly with what Nancy Pelosi told journalists and voters before Congress passed Obamacare. Before an applauding audience, Pelosi said Democrats had to “pass the bill so that you can find out what’s in it.”
The same rule is true of Joe Biden and Kamala Harris. You have to elect them first before they’ll admit what’s real. Until then, they’ll say or do anything to avoid taking a hard stance — other than that they don’t like Trump — in order to get elected.
One of the tactics Kamala Harris deployed to defend herself from the court-packing questions from Vice President Pence during Wednesday’s debate: fabricating U.S. history and quotes by Abraham Lincoln. According to a Rev transcript, she claimed:
Abraham Lincoln was up for reelection and it was 27 days before the election. And seat became open on the United States Supreme Court. Abraham Lincoln’s party was in charge, not only of the White House, but the Senate. But Honest [Abe] said, “It’s not the right thing to do. The American people deserve to make the decision about who will be the next president of the United States. And then that person can select who will serve for a lifetime on the highest court of our land.”
Harris went on to say that she and Biden simply want the same standard. There’s just one problem: Lincoln never said that. And the 16th president didn’t leave the seat open through the election for some high-minded reason involving elections and the people’s vote. Every word and insinuation of Harris’ answer was a bald-faced lie.
As Dan McLaughlin notes for National Review, “[Lincoln] sent no nominee to the Senate in October 1864 because the Senate was out of session until December. He sent a nominee the day after the session began, and Salmon P. Chase was confirmed the same day.”
One day. Imagine if Donald Trump and Republicans followed the Lincolnian example and confirmed Amy Coney Barrett into the Supreme Court the same Saturday they had the nomination ceremony for her. Heads would explode.
Harris was wrong on another level, too. Politics and principle also motivated Lincoln’s decision in that pick. There was an opening because Justice Roger B. Taney — unquestionably the worst justice in U.S. history for his majority opinion upholding slavery in the Dred Scott decision — died on Oct. 12, 1864.
As McLaughlin noted, the Senate was out of session and couldn’t do anything. In 1864, if the Senate was out of session, it was truly out. There was no hopping on a plane to get back, and no phone calls or emails to give people a quick update on events.
Lincoln nominated, during the lame-duck session in December of 1864, Salmon Chase. Had Lincoln lost the race, he would have unquestionably picked Chase or someone like him to the Supreme Court, because Lincoln’s opponent, General George B. McClellan, was not the ardent abolitionist that Lincoln was.
In a fact-check of Harris, historian and Salmon Chase biographer Walter Stahr wrote:
[T]here was a world of difference on this issue between Chief Justice Roger Taney, who declared in the Dred Scott opinion that blacks could never be American citizens, and Chief Justice Salmon Chase, who was one of the most ardent and important leaders of the antislavery movement during the two decades before the Civil War. Lincoln was well aware of Chase’s views on black rights — the two men had debated the issues often during the Civil War — with Chase consistently urging Lincoln to move faster to free the slaves, to enlist them in the Army, to allow them to vote in the southern states.
McClellan would have never nominated someone like Chase to the Supreme Court. And Lincoln would have put Chase on the court regardless, on the grounds of the issue of slavery alone.
You didn’t have to elect Lincoln to know what his stance was here, nor McClellan.
While Harris invented history, Pence went chapter and verse on it. Pence correctly said that “there’ve been 29 vacancies on the Supreme Court during presidential election years from George Washington to Barack Obama.”
“Presidents have nominated in all 29 cases,” he told Harris, “but your party is actually openly advocating, adding seats to the Supreme Court, which has had nine seats for 150 years if you don’t get your way. This is a classic case of if you can’t win by the rules, you’re going to change the rules.”
Contrary to Harris, Trump and Pence are following the example of the Party of Lincoln. They’re nominating the person they’d prefer on the court and sticking with it. The only difference between our time and Lincoln’s is that the Senate was still in session and capable of pivoting and conducting a Supreme Court justice hearing in an election year.
You don’t have to vote for Trump to know what he’s going to do regarding the judiciary. Trump is transparent and honest in that regard, giving people a list of judges and sticking to it, while adding exemplary names to it over time.
Biden and Harris are dodging and lying their way through this topic, and that, by itself, is disqualifying. And as Pence points out, it also means they support packing the court — which is radical and even more disqualifying.