# Why won't Biden do his duty (as perceived by the OP)? **URL:** \ **Category:** Politics & Elections\ **Created:** [November 15, 2024, 7:14pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297 "2024-11-15T19:14:22Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [November 16, 2024, 9:27pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/41 "2024-11-16T21:27:10Z")
> [@Lance\_Turbo](#): > > It sure does seem that you are saying that it’s not possible for things to be worse than right now. No, I wasn’t. I was refuting your apparent claim that the current situation should be preserved (by refraining from doing anything about it). > [@Lance\_Turbo](#): > > It’s definitely possible. It’s a certainty. Yes, it is. But that doesn’t imply that the current situation should be preserved. The Court is too small by objective standards. Bringing it in line with the number of Courts of Appeals would be a step in the right direction. I understand that you believe that “nine” should be preserved, and furthermore, if Biden never mentions this topic, that this will somehow protect against the possibility of Trump doing something about the number. I find that faith to be unwarranted. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 16, 2024, 9:39pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/42 "2024-11-16T21:39:43Z")
> [@Sherrerd](#): > > The idea that has set in that the number of Justices is no business of Biden’s (or of any President) and that this is entirely up to Congress, is what is wrong and mistaken. Procedurally, yes, Congress has passed various Judiciary Acts over the years that showed the change in the number of Justices. That is not the same thing as the (false) notion that Congress “sets” the number. They have to agree to what the President decides and if they disagree, they don’t pass a new Judiciary Act. You may want to check Article II, Section 2, Clause 2, concerning the president’s appointment power: > and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, **and which shall be established by Law** The President has the power to appoint individuals to offices, provided those offices have been created « by law ». What body has the power to enact laws, I wonder? Think, Piper, think … ---
**Author:** ![StrongStyle](https://avatars.discourse-cdn.com/v4/letter/s/34f0e0/32.png) [@StrongStyle](https://boards.straightdope.com/u/StrongStyle)\ **Post date:** [November 16, 2024, 9:41pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/43 "2024-11-16T21:41:35Z")
> [@Sherrerd](#): > > The idea that has set in that the number of Justices is no business of Biden’s (or of any President) and that this is entirely up to Congress, is what is wrong and mistaken. Procedurally, yes, Congress has passed various Judiciary Acts over the years that showed the change in the number of Justices. That is not the same thing as the (false) notion that Congress “sets” the number. They have to agree to what the President decides and if they disagree, they don’t pass a new Judiciary Act. This thread seems to be centered on a motte-and-bailey argument in which you assert that Biden’s duty is to resize the court (on the flimsy pretext of circuit balancing), necessarily implying he has the power to do so, but you retreat to the safety of the claim that Biden is allowed to ask Congress to pass a law resizing the court. The second claim is almost vacuous and bears little relation to the bombastic initial post. ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [November 16, 2024, 9:50pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/44 "2024-11-16T21:50:26Z")
> [@Sherrerd](#): > > You are, instead, looking at the US Code, which _describes our **current** laws_. You fundamentally misunderstand how laws work. There’s really not much more conversation to be had here. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [November 16, 2024, 10:11pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/45 "2024-11-16T22:11:42Z")
Me, I’m still wondering where does OP get that all this is a “duty” that Biden is shirking. ---
**Author:** ![Aspenglow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aspenglow/32/76_2.png) [@Aspenglow](https://boards.straightdope.com/u/Aspenglow)\ **Post date:** [November 16, 2024, 10:12pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/46 "2024-11-16T22:12:53Z")
Moderating: I agree. Title change merited. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 16, 2024, 10:21pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/47 "2024-11-16T22:21:43Z")
> [@Sherrerd](#): > > In US history there have been several instances of Presidents making Supreme Court nominations in order to balance the size of the Court with the number of federal Courts of Appeals (aka Circuit Courts). Cite please. Specifically, cite where the president made such appointments and then Congress amended the Judiciary Act to match the new number set by the Président ? ---
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [November 16, 2024, 10:22pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/48 "2024-11-16T22:22:40Z")
> [@flurb](#): > > You fundamentally misunderstand how laws work. There’s really not much more conversation to be had here. That’s fine, but I suggest that in the time made available by a choice not to converse here, you educate yourself about the Constitution. Laws are listed in the US Code and they are changed often. You may not be aware that there is a difference between the Code and the founding document. The Constitution does not establish as a power of Congress the right or duty to set the number of Justices–not in Article I nor anywhere else. ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [November 16, 2024, 10:44pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/49 "2024-11-16T22:44:38Z")
You’re tilting at strawmen. Nobody disputes that the Constitution and the US Code are not the same. The US code codifies the laws passed by Congress. Which Congress does within its authority under the Constitution. The Constitution gives Congress wide authority to constitute the courts. It does not explicitly state that the Congress may set the number of Supreme Court justices, but that is a reasonably understood inherent authority that Congress has exercised since the Judiciary Act of 1789. And if the Founders thought that was unconstitutional — well they were all still there to raise an objection. ---
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [November 16, 2024, 10:44pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/50 "2024-11-16T22:44:48Z")
> [@Northern\_Piper](#): > > Specifically, cite where the president made such appointments and then Congress amended the Judiciary Act to match the new number set by the Président ? What are you talking about? Please cite anywhere I stated that Biden should _“[make] appointments” and then Congress should act_. Obviously there are no citations possible for a President “making appointments and then Congress” amending “the Judiciary Act,” which is unsurprising since I made no such claims. There seems to be a great deal of silliness settling in. Which is unfortunate, as I believe that Biden could do a great service to the nation by addressing this topic. However, disagreement is inevitable in the face of sentiments such as > [@StrongStyle](#): > > The second claim is almost vacuous and bears little relation to the bombastic initial post. You have every right to offer your assessment of the tone of a post, of course. But I must dispute the notion that it’s vacuous to point out that Biden not only _could_ do something useful–advocate for right-sizing the Court–but that _this is the order in which this should happen, Constitutionally._ As noted, Congress is NOT given the responsibility to “set” the number of Justices. For some reason those participating in this thread seem to be deeply invested in the idea that setting the number of Justices is an Article I duty. At this point I guess we must simply accept that this misconception is profoundly important to some here. As is, quite possibly, the concept that a poster here (me) believes that Biden has a duty. On his behalf, participants in this thread have emotions they must express. Those who have taken the trouble to post (and I thank you), perhaps, feel protective toward him and resent any criticism of him. That’s commendable, I suppose, even if not directly relevant to the topic: I believe a President does have a duty to address the question of the Court’s size, given the circumstances. Those moved to participate here strongly disagree. The pretext for disagreement—a cry that Congress must pass an Act in order for a new Court size to come about, which is inarguable—seems disingenuous to me in its incontestability. But that’s where we are. ---
**Author:** ![Lance\_Turbo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lance_turbo/32/6156_2.png) [@Lance\_Turbo](https://boards.straightdope.com/u/Lance_Turbo)\ **Post date:** [November 16, 2024, 10:50pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/51 "2024-11-16T22:50:26Z")
> [@Sherrerd](#): > > I was refuting your apparent claim that the current situation should be preserved (by refraining from doing anything about it). I, in no way, think the current situation should be preserved. > [@Sherrerd](#): > > I understand that you believe that “nine” should be preserved, and furthermore, if Biden never mentions this topic, that this will somehow protect against the possibility of Trump doing something about the number. I do not believe that nine should be preserved and I do not believe that Biden not mentioning it will protect against Trump expanding the court. What I do believe is that if Biden pursued your plan the end result would be that the situation would be worse than it is now. I’m not saying that Biden should do nothing. I’m saying that Biden shouldn’t do this particular thing that would make the situation worse. > [@Sherrerd](#): > > We differ on the topic of whether this is possible. What is the antecedent of the demonstrative pronoun ‘this’ in, “We differ on the topic of whether this is possible”? ---
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [November 16, 2024, 11:03pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/52 "2024-11-16T23:03:14Z")
> [@Lance\_Turbo](#): > > I, in no way, think the current situation should be preserved. > [@Lance\_Turbo](#): > > I do not believe that nine should be preserved and I do not believe that Biden not mentioning it will protect against Trump expanding the court. Okay on both. As to whether Biden should do “this particular thing,” clearly we disagree. And on the antecedent of the demonstrative pronoun, my intent was to disagree with your post 20 implication\* that the current situation should be preserved. Clearly my post 22 response needed to be longer in order to convey that view. \*my opinion of it at the time of writing, of course. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 16, 2024, 11:04pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/53 "2024-11-16T23:04:29Z")
> [@Sherrerd](#): > > Joe Biden can and should reconcile the number of Justices with the number of Circuit Courts. It’s fair to say that this is his duty. Quick question. What is the current number of Democrats in the Senate and why is that number important? ---
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [November 16, 2024, 11:08pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/54 "2024-11-16T23:08:06Z")
> [@Magiver](#): > > What is the current number of Democrats in the Senate and why is that number important? In the current (118th) Congress, there are 47 Democrats and 4 Independents who all ‘caucus with’ the Democrats. As I’m sure you know, that means they vote with the Democrats.\* And of course 49 Republicans. \*eta: per wikipedia, "independent Sen. Kyrsten Sinema of Arizona does not caucus with the Democrats, but is “formally aligned with the Democrats for committee purposes.” ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 16, 2024, 11:10pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/55 "2024-11-16T23:10:46Z")
> [@Sherrerd](#): > > In the current (118th) Congress, there are 47 Democrats and 4 Independents who all ‘caucus with’ the Democrats. As I’m sure you know, that means they vote with the Democrats. And of course 49 Republicans. Which way is Senator Phillip Alister Buster going to vote? ---
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [November 16, 2024, 11:11pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/56 "2024-11-16T23:11:29Z")
> [@Magiver](#): > > Which way is Senator Phillip Alister Buster going to vote? Cute. It’s true that I overpromised in the OP, specifically “Joe Biden can and should reconcile the number of Justices with the number of Circuit Courts” which does strongly imply that I believe he can succeed in actually getting the Justices seated. I’d change that if I could. My position is that he does have a duty to affirmatively advocate for reconciliation of the number of Justices with the number of Courts of Appeals. You should be aware, though, that Justices don’t have to reach 60 votes for confirmation—only 51. ---
**Author:** ![StrongStyle](https://avatars.discourse-cdn.com/v4/letter/s/34f0e0/32.png) [@StrongStyle](https://boards.straightdope.com/u/StrongStyle)\ **Post date:** [November 16, 2024, 11:15pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/57 "2024-11-16T23:15:10Z")
> [@Sherrerd](#): > > On his behalf, participants in this thread have emotions they must express. Those who have taken the trouble to post (and I thank you), perhaps, feel protective toward him and resent any criticism of him. Claiming that criticism of your idea, which is not well-founded historically or logically, must be due to emotion does not indicate you’re arguing in good faith, nor does your claim that posters are “confusing” statutes with the Constitution. At best you’re making an argument that lacks historical or academic foundation. At best. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 16, 2024, 11:20pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/58 "2024-11-16T23:20:42Z")
> [@Sherrerd](#): > > You should be aware, though, that Justices don’t have to reach 60 votes for confirmation—only 51. You should be aware that it takes 60 Senators to break a filibuster. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 16, 2024, 11:26pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/59 "2024-11-16T23:26:11Z")
Which does not apply to judicial appointments. > **[Analysis: This is Harry Reid’s biggest legacy | CNN Politics](https://amp.cnn.com/cnn/2022/01/04/politics/harry-reid-legacy-filibuster)** > > It’s fitting that the same week the body of former Senate Majority Leader Harry Reid is set to lie in state at the US Capitol, there is a(nother) debate happening in the building about the future of the filibuster. ---
**Author:** ![Sherrerd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sherrerd/32/8_2.png) [@Sherrerd](https://boards.straightdope.com/u/Sherrerd)\ **Post date:** [November 16, 2024, 11:35pm UTC](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297/60 "2024-11-16T23:35:19Z")
> [@StrongStyle](#): > > Claiming that criticism of your idea, which is not well-founded historically or logically, **must be due to emotion** My bolding. I didn’t write “must.” I wrote “perhaps.” Granted, I did write “have emotions.” I believe it’s well-accepted that all humans have emotions. In effect my sentence acknowledges that bots are not participating in this thread. (I could be wrong.) Still, the claim you made about “must” raises questions as to whether you’re arguing in good faith. As to a lack of historical or academic foundation: this seems a stretch. It’s a topic that’s been taken seriously for years; a few citations: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/[https://www.law.nyu.edu/sites/default/files/ECM\_PRO\_060941.pdf](https://www.law.nyu.edu/sites/default/files/ECM_PRO_060941.pdf) > **[PACKING THE COURT: THE RISE OF JUDICIAL POWER AND THE COMING CRISIS OF THE...](http://www.lpbr.net/2011/02/packing-court-rise-of-judicial-power.html)** > > by James McGregor Burns. New York: Penguin Books, 2010. 336 pp. Paper $16.00. ISBN: 9780143117414. Adobe eBook. $9.99. ISBN: 9781101080... [https://law.marquette.edu/poll/2024/10/17/new-marquette-law-school-poll-national-survey-finds-approval-of-u-s-supreme-court-edges-upward-but-55-disapprove-of-the-courts-work/](https://law.marquette.edu/poll/2024/10/17/new-marquette-law-school-poll-national-survey-finds-approval-of-u-s-supreme-court-edges-upward-but-55-disapprove-of-the-courts-work/) [Previous page](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297.md?page=2) [Next page](https://boards.straightdope.com/t/why-wont-biden-do-his-duty-as-perceived-by-the-op/1010297.md?page=4)