There's a lot of pressure on Joe Biden right now to state his position on "court packing." In reality the decision may not be his. If California's senior senator and ranking member of the Senate Judiciary Committee Diane Feinstein's physical embrace, sans mask, of Committee Chairman Lindsey Graham and his handling of the Judge Amy Coney Barrett confirmation hearing are any indication of her position on court expansion, opponents have nothing to fear.
Over the course of her 27-year tenure in the Senate, Feinstein has emerged as one of the cagiest and stealthiest conservatives in Senate history. Elected by one of the most progressive states in the country, Feinstein wields her weight behind the scenes to thwart progressive initiates with remarkable regularity and little scrutiny.
Feinstein has traditionally preferred to work behind closed doors whenever possible. She's a throwback to the days when deals that had significant public impact were made out of public view. Easier to get things done when the passengers are safely strapped to their seats.
It's a pretty safe bet Feinstein didn't heap lavish praise on Graham and then wrap her arms around him for good measure in front of the entire press corps without considering the implications. She was sending a message.
Feinstein has her eyes on the Judiciary Committee chair. If the Democrats take back the Senate, she is in line to get that post. Far from resigning, she is poised to ascend the ladder of power. As Judiciary Chairwoman, Feinstein would be in a prime position to influence judicial policy in a Democratic Senate and in a Biden White House.
Why break Senate tradition and pack the court when the Chairwoman can negotiate what's best for the country in Senate Chambers? It's far more civilized and efficient, right?
It's important to bear in mind that if the Democrats gain control of both chambers of Congress and the White House, they will have a historic opportunity to effect fundamental change. But it's likely to be a narrow window. The Senate strongly favors red states, both electorally and in terms of influence on policy. The odds are that Democratic control will be short-lived.
The opportunity to make a lasting impact may not be longer than two years. If the court is going to be righted, it's going to have to happen quickly. If Feinstein and the Democrats decide to "work something out" instead of rolling up their sleeves and fixing the problem, the fate of the court will be sealed for a generation.
The Democrats would argue publicly that they want a court that sees constitutional law through the Ginsburg lens. But there are some Democrats in the Senate who don't, and who, given the chance, would welcome the convenience of having a conservative court to blame the failure of progressive initiatives on.
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