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credit: AP

ELI5: I just don’t get the DEMs on “Court-packing”

I rarely yell at my TV. I did so during the debate last night. Vice-President Pence taunted Senator Harris as Trump had taunted Biden — are you “going to pack the court if Judge Amy Coney Barrett is confirmed?”

Harris responded as Biden had responded: the people should have a voice. She added an interesting nugget of history — Lincoln, in 1864, even with his own party in control in the Senate, believed it wrong to appoint a justice with less than a month before the election.

But Harris didn’t even mention a little-bit-more recent snippet of history: Merrick Garland. The argument that she didn’t make, just like Biden before her, was that the Republicans denied President Obama his moderate pick 9 months before the 2016 election because of the “principle,” as the McConnell put it, that the people should speak first. It is utter hypocrisy now to ignore that same principle. That hypocrisy is what’s packing this Court — giving a man who didn’t even win a plurality in 2016 the chance to appoint 1/3 of the Supreme Court. And if — as I believe the Democrats should say—the Republicans stop that hypocrisy, and let the people’s choice determine this next appointment, then the Democrats should openly commit that they won’t pack the Court.

I say that knowing that I don’t know whether this is in fact an effective answer for the audience being targetted. I’ve seen enough campaign polling to know that the question right now is not what feels good to a committed supporter, but what helps persuade the persuadable. Nothing could weaken my support for Biden. I’m not the target audience.

But I would love to understand why a focus on hypocrisy here would not be effective on the persuadable. I’ve got to believe that the omission is intentional. I’ve got to believe it is supported by data. But what is the data? How could it possibly make sense to cede the high ground here to Trump and Pence?

Data mavens (and seriously, only if you have data), what is the argument?

Written by

law professor, activist.

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