Politics Biden's 6-Month Reprieve From the Left’s Court-Packing Push
Is the Supreme Court too partisan? Here's what 3 reform plans would do
"I think Americans are losing confidence in the court," one reform advocate said. But there's little agreement on how to fix it.In the closing days of the 2020 campaign, Joe Biden pledged in an interview with CBS News' "60 Minutes" that he would form a bipartisan commission of constitutional scholars to recommend options for reforming the U.S. Supreme Court and federal judiciary.
There was no announcement in the White House East Room recognizing respected veteran Washington figures selected as the bipartisan co-chairs.
It wasn’t even mentioned on the daily White House schedule.
In short, the unveiling of President Biden’s 36-member commission on Supreme Court reforms was even more understated than most blue-ribbon panels set up to study -- but never really resolve -- thorny third-rail policy issues like Medicare reform during President George W. Bush’s tenure or more aspirational goals such as fiscal responsibility at the beginning of the Obama administration.
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There’s a good reason for that. Since the early days of his presidential campaign last year, Joe Biden has viewed progressives’ push to expand the number of Supreme Court justices as an annoying distraction that would cost him crucial support among the large swath of moderates and independents while only satisfying the far-left voters who were going to back him in the general election anyway, regardless of his court-packing position.
Turns out, he was right, and remains so as the party looks ahead to the 2022 midterms. Candidate Biden managed to dodge and weave to avoid a straight answer on the question for most of the presidential campaign -- until October, amid growing pressure from the left after Senate Republicans moved forward with the confirmation of conservative Justice Amy Coney Barrett just ahead of the election. Instead of taking a position on expanding the number of Supreme Court judges, Biden promised, if elected, to convene a commission to study several different reforms to the high court, including one that would expand the number of seats from nine to 13 because, he said, the current system is “out of whack.”
Biden’s Supreme Court reform commission won’t fix anything
The president’s new commission has a lot of fans — in the Federalist Society.On Friday, President Joe Biden announced that he would sign an executive order creating a “Presidential Commission on the Supreme Court of the United States.” Griffith — who retired from the federal bench in 2020, allowing former President Trump to choose his successor — is one of several prominent conservatives on this commission, which the White House says Biden appointed to “provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.
Still, even then he admitted he’s “not a fan of court packing” – the closest Biden had gotten since the primary of sharing his views on the issue. But he also signaled a slight shift in his thinking, seeming more sympathetic to those pressing for an overhaul.
“Never before, when an election has already begun and millions of votes are already cast, has it ever been that a Supreme Court nominee was put forward,” he said in a television interview. “Had never happened before.”
In announcing the commission a week ago, Biden gave himself an extra six months to let the best constitutional scholars and other legal luminaries on the left, as well as a smattering of those on the right, hash out the issue. The commission only has the mandate of studying different high court reforms and producing a report, not making recommendations to Congress. In limiting the panel’s scope, the president appears to be hoping the exercise will let the air out of the movement, not generate more support.
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This is the latest case in which the high court has barred officials from enforcing coronavirus-related restrictions applying to religious gatherings.The 5-4 unsigned opinion, published just before midnight on Friday, highlighted the deep divisions over the issue, with Chief Justice John Roberts siding with three liberals who dissented. The court also noted that this was the fifth time it had overturned the California-based U.S. Court of Appeals for the Ninth Circuit in similar cases.
But left-wing rebel-rousers, including House Judiciary Committee Chairman Jerry Nadler, Massachusetts Sen. Ed Markey and a host of liberal groups aren’t letting up. This week they unveiled their bill to expand the high court to 13 justices, with Nadler contending, in Orwellian fashion, that he and other Democrats aren’t packing the court, as Republicans contend, they’re “unpacking it.”
“Sen. McConnell and the Republicans packed the court over the last couple of years,” he argued.
Nadler was referring to then-Senate Majority Leader Mitch McConnell’s decision to block the nomination of Merrick Garland, Obama’s last Supreme Court pick whom Biden tapped to become his attorney general, for 11 months in early 2016, citing the upcoming presidential election as his rationale. Most Democrats remain outraged over the move, and that anger only grew when Donald Trump then had the opportunity to confirm three justices during his four years in office.
But the introduction of a formal bill re-inserted the issue into an already crowded news cycle this week, forcing Speaker Nancy Pelosi into the awkward position of deeming the measure dead on arrival. Pelosi was clear: The bill isn’t going anywhere on her watch -- at least not before the 2022 elections when it could cost them House seats (as happened with the far-left defund-the-police movement in 2020) and perhaps the majority itself. With Louisiana GOP Rep. Julia Letlow’s swearing in this week, House Democrats hold a razor-thin six-seat majority.
Democrats 'to pack the Supreme Court with four new justices'
The Supreme Court will expand from its current nine members to 13 under a plan, which The Intercept said will be unveiled on Thursday in both the House and the Senate.The proposal, reported by The Intercept, is likely to spark strong protest from Republicans, who warned during the election that Joe Biden would try and change the court's composition.
“I have no intention to bring it to the floor,” Pelosi told reporters who peppered her with questions about the measure Thursday. But wary of alienating her base of left-wing Democratic voters who back the push, Pelosi added that expanding the court is “not out of the question.” Still she made clear she prefers to let the commission do its work before taking a firm stand.
The same week, Biden planned to build bipartisan support for a portion of his $2 trillion infrastructure bill and deliver a speech on his decision to withdraw all U.S. troops from Afghanistan by the 20th anniversary of 9/11 attacks later this year. But the White House was forced to once again deflect on the court-packing campaign once Nadler and the other advocates unveiled their legislation. White House press secretary Jen Psaki stated Thursday -- no less than six times -- that Biden is withholding judgment until the commission does its work and he reads their report.
“The president believes that it’s important to take a look at a range of points of view, whether they are progressive or conservative, different sets of legal opinions, and he looks forward to assessing that himself,” she said. “And I expect he will not have more to convey about any recommendations or views he’ll have until he reads that report. But he certainly understands that members of Congress have a range of views, and they’re going to propose legislation. He may or may not support it.”
Senate Democrats Dodge on Packing the Supreme Court
Most Democratic senators refuse to take the idea off the table.Nearly a week later, Markey has yet to gain a single Senate co-sponsor for the bill. But more than a dozen Democratic senators who spoke to National Review in the Capitol refused to unequivocally rule out supporting the plan.
By the end of the briefing, Psaki’s answers became more clipped, especially when a reporter reminded her that Biden had previously called a push to expand the number of court justices “a boneheaded idea.” That was back in 1983, but in 2019 he was equally forceful in his opposition.
“No, I’m not prepared to go on and pack the court, because we will live to rue that day,” he said in July of that year.
There is an evolution in his thinking, Psaki acknowledged on Thursday, but implied it’s unlikely as dramatic as Nadler, Markey and other progressives hope.
“The president feels that it’s important to take a look at a range of issues related to the courts,” she said. “And I think that’s an indication that he’s seen the impact in recent years. And it’s time to take a fresh and clear look at a range of issues. The size is one of them. So is the length of service, the selection, the case selection, rules, and practices.”
In mentioning the length of service, Psaki was highlighting a proposal to place 15- or 18-year term limits on justices, an idea the Washington Post editorial board recently backed. The more modest reform could be a way for Biden to thread the needle and back a plan that would still face a tough road in winning congressional approval, though ending lifetime tenure for the justices may be the best sell coming from a 78-year-old president who has spent more than four decades in Washington.
On Friday, White House reporters were willing to turn the page with a shift in the news cycle. Overnight, there had been a mass shooting in Indianapolis and Japanese Prime Minister Yoshihide Suga was in town for Biden’s first White House summit with a foreign leader. Psaki received exactly zero questions on court-packing.
But Biden and Pelosi can’t punt the issue down the road forever. The commission has 180 days to produce its report with a release date this fall, just as campaigns are gearing up for the 2022 midterms. Republicans aren’t holding their fire.
The National Republican Congressional Committee, the House GOP campaign arm, this week poked fun at a tweet from freshman Democratic Rep. Mondaire Jones, who is co-sponsoring the court-packing bill.
Jones tweeted, “Supreme Court expansion is infrastructure.”
“Given all the other socialist garbage included in their ‘infrastructure package,’ are House Democrats planning on including Jones’ court-packing legislation too?” an NRCC press release asked.
“The left will stop at nothing to enact their agenda, even it means dismantling our public institutions to do it,” stated Dan Conston, president of the conservative American Action Network.
Once the commission issues its report this fall, Biden will then have to either stand up to his far-left flank and shelve the reforms completely or offer a more piecemeal approach. Either way, the Democrats’ thin margins in both the House and the Senate will serve as the ultimate backstop against high court changes -- at least until (and if) the party gains far more seats in both chambers 19 months from now.
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