Byron York’s Daily Memo: Things Democrats won’t talk about

THINGS DEMOCRATS WON’T TALK ABOUT. During the 2018 midterm elections campaign, many Republicans believed Democrats would impeach President Trump if they won control of the House of Representatives. Nearly all Democrats refused to talk about it. This election is about health care, they said. It is about education. It’s about inequality. About education. Gun violence. It’s about the issues that the American people care about most. And no, it’s not about impeachment.

Still, Republicans suspected that many Democrats did, in fact, plan to impeach the president if they took the House. And then Democrats won, and look what happened. Starting with Rep. Rashida Talib’s vow to “impeach the motherf**ker” (made the night she was sworn in), momentum for impeachment grew through 2019 as Democrats excitedly awaited the Mueller report, and then kept pushing for impeachment even after the report was a dud. Then came Ukraine, and impeachment ate the Democratic agenda, and the nation’s political life, for months. The House voted to impeach the president on December 18, 2019.

Now, Democrats are facing questions about whether they plan to pack the Supreme Court if they win control of the White House and Congress. And again, most of them, except for those on the far-left progressive wing, are refusing to talk about it. And their argument — again — is that voters care more about health care and other kitchen-table issues.

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“Most mainstream Democrats appear to be quietly wishing that the court-packing discussion, which they see as potentially damaging, would just go away,” Time magazine reported. “‘You’re never going to win having a process argument,’ says a Democratic strategist working on Senate races. ‘Everyone knows someone living with a pre-existing condition. No one wants to sit down and have a process argument about the Supreme Court.” Indeed, on the first day of Court nominee Amy Coney Barrett’s confirmation hearing, Senate Democrats had clearly made a decision to base their objections to her on health care, alleging that she would kill the Affordable Care Act.

For his part, Joe Biden has made a decision not to discuss court packing, no matter how bad it makes him look. Even when asked, by a local reporter, “Don’t the voters deserve to know” where he stands on court packing, Biden quickly said no, the voters do not deserve to know where he stands. He has similarly refused to answer any and all questions about the issue. “The answer is: I am not going to play Donald Trump’s game,” top Biden aide Kate Bedingfield told CNN Sunday. “We’re not going to play their game.”

Meanwhile, some Democrats have attempted to re-define “court packing” to claim that it is Republicans who are packing the court. But what they meant was that in the past Republicans have filled judicial vacancies with conservative judges — just as Democrats have filled judicial vacancies with liberal judges. Over the weekend Senate Democratic leader Charles Schumer said that Republicans “held back…all these [vacancies] when Obama was there, and then they appointed right-wingers. This idea that Democrats are packing the court — [Republicans] have already done it.” The problem for Democrats was that simply wasn’t court packing, and everybody knows it wasn’t court packing.

So how much is the Democratic 2020 strategy like the Democratic 2018 strategy? Back then, they decided not to talk about impeachment in public. Now, they have decided not to talk about court packing in public. But here’s the thing: In 2018, when they were not talking about impeachment in public, Democrats were planning for it in private. The new book OBSESSION discusses how incoming House Judiciary Committee chairman Rep. Jerrold Nadler, who had not wanted to talk about impeachment during the campaign, was overheard (by the Federalist’s Mollie Hemingway) discussing impeachment plans the day after the election. Those plans were already well under way.

It might be a good idea to apply that lesson to today’s court packing issue. The first thing to remember is that the level of Democratic anger about the Supreme Court is sky-high. Many believe that after the Merrick Garland affair, Trump’s Court choices are simply not legitimate. Look at what they did to Brett Kavanaugh. Now, if Senate Republicans confirm Barrett, that anger will go even higher. And remember that it is also tied to the belief among the most zealous Democrats that Trump himself is not a legitimate president because he lost the popular vote in 2016, because Republicans practiced voter suppression, because Russia helped him win — pick your reason.

That anger will come pouring out after the election. If Trump wins, it will mean the Resistance kicks into an even higher gear. But if Biden wins, many Democrats will want “justice.” They will view a Supreme Court with a conservative majority as Trump’s illegitimate legacy, and their remedy, if they have the votes in Congress and a Democrat in the White House, will be to pack the Court. So don’t listen to what they say now. They’ll do it if they can.