The best thing that can be said at this point about his weeks of dodging on this subject is that it’s not quite as dishonest as Obama lying bald-faced to voters in 2008 about whether he supported legalizing gay marriage. Remember that? Gay marriage was still a few years away from going mainstream in American politics back then, but even at the time it was popular among the liberal intelligentsia. Surely an Ivory Tower law professor turned Democratic presidential nominee agreed with his educational/ideological cohort that the Constitution should protect same-sex unions.

Nope, not me, said Obama. I’m a Christian. I believe marriage is between a man and a woman. Hardly anyone believed he didn’t support gay marriage privately, but the left happily tolerated the charade in the name of making Obama more palatable to swing voters. It worked. O got elected twice, finally endorsed gay marriage in 2012 when it was politically safer to do so, and same-sex unions were legalized by SCOTUS before his second term was up.

Unlike his former boss vis-a-vis SSM, Biden’s not taking a clear position on Court-packing. No one will be able to say that he lied to them when he finally makes his view clear after the election. But I do wonder if some lefties think this is a redux of 2008, where the nominee pretends to be more moderate than he is, only to reveal the truth once he’s in office. I think they’re setting themselves up for disappointment. He sincerely does seem to look skeptically at Court-packing, as he said more than once during the primaries (and made clear as a senator decades ago), and it’s highly unlikely that he’ll have 50 Democratic votes in the Senate to nuke the filibuster *and* pack the Court, which is what he’d need to get this done.

That is to say, there *is* a 2008-style charade going on here but this time it’s at the expense of the left, not socially conservative swing voters. Biden’s trying to hint to them here that they shouldn’t get their hopes up about adding justices but clearly he’s not going to give them a flat “no” before Election Day, knowing that some of them might stay home in protest.

“I’m not a fan of court packing, but I don’t want to get off on that whole issue. I want to keep focused,” Biden told WKRC, a Cincinnati-area CBS/CW affiliate. “The president would like nothing better than to fight about whether or not I would in fact pack the court or not pack the court, et cetera. The focus is, why is he doing what he’s doing now?”

The former vice president also described Republicans’ push to confirm Judge Amy Coney Barrett to the Supreme Court before November’s election as a form of court packing.

“Court packing’s going on now. Never before, when an election has already begun and millions of votes already cast, has it ever been that a Supreme Court nominee was put forward,” Biden said. “And one of the reasons is the only shot the American people get to determine who will be on a lifetime appointment to the Supreme Court or federal court is when they pick their senator or their president.”

Court-packing isn’t “going on now.” That’s a silly argument Democrats are using to try to change the subject from what Biden would do with the Court if their party reclaims total control of government, but the fact that so many of Dem politicians are pushing this talking point makes me wonder what their polling is showing them about how receptive voters might be to it. The GOP isn’t packing the Court by filling a vacancy, of course — that’s S.O.P. for the Senate, whereas expanding the Court to let the new president add like-minded justices would be a radical departure. But obviously there’s a glaring asymmetry in Republicans holding open a seat to ensure an eight-person Court in 2016, then turning around and ramming Barrett through in 2020 after voting in the presidential race has already begun on the theory that the Court must be fully staffed to decide election controversies. Calling that “Court-packing” is inaccurate but it may be effective shorthand for voters in capturing the sense that what the GOP’s doing is hypocritical and illicit. (See, e.g., the many, many polls finding that majorities believe the next president should fill Ginsburg’s seat.) They’re not packing the Court but they *have* played with the size of the Court (and federal appellate courts) over the past five years to ensure their own partisan advantage, which is precisely what some Dems want to do next year. That’s what Biden’s getting at with his tu quoque.

And even if that argument doesn’t satisfy swing voters, it might do something to placate lefties who want to pack the Court but are slowly coming to grips with the fact that it’s unlikely to happen. Biden going around telling reporters “I don’t like Court-packing but these Republican hypocrites suck” will help soften the blow for progressives by appealing to their partisan animosity towards the right.

I can’t find embeddable video of his “not a fan” comments but you can watch them here. I’ll leave you instead with this clip of Biden trying to clean up another bit of dicey messaging from over the weekend. He had warned about “chicanery” at the polls, which sounded a lot like Trump forever screeching about a rigged election. Joe’s supposed to be the guy who’ll restore civic “norms,” right? And yet here he was joining Trump in claiming that if he ends up losing it can only have been due to cheating. Here he is trying to clarify that afterward and not fully succeeding.

“I understand one of the comments I made was taken a little out of context. I’m going to accept the outcome of this election period,” Biden says of his “chicanery” line. What I was referencing is the attempts that are made to try to influence and scare people from voting.” pic.twitter.com/9nI3lGWxV2

— Jennifer Epstein (@jeneps) October 10, 2020