After dithering for a month over the charged question of whether he supported the expansion of the Supreme Court—a.k.a. “court-packing”—first he wouldn’t answer the question, then he said he would answer “when the election is over,” then he said he would answer before the election, Joe Biden finally proposed on Thursday the formation of a bipartisan commission after the election to “study” the issue.
“If elected, what I will do is, I’ll put together a national commission, a bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative,” Biden told Norah O’Donnell of CBS News. “I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system because it’s getting out of wack.”
This might be the most Biden thing Biden has ever said.
It is a truth universally acknowledged that the best way to kick the political can down the road is to call for a bipartisan commission to study it. Shifting the matter to a bipartisan commission makes it look as though progress is being made and it releases pressure on whoever might be the president to take a stand. By assigning the topic to a bipartisan gaggle of scholars or diplomats or politicians, the commission creates the illusion that the very political issue under question has been depoliticized. The bipartisan commission serves as both the broom and the rug in the act of sweeping something out of sight.
The only wonder of Biden’s proposal is that it took him so long to pitch it. During the primaries and before, he had counted himself as among the anti-court-packers. “Not a fan,” he had pronounced himself. But then Biden stumbled hard in late September when asked about court-packing in Wisconsin. He wasn’t going to answer, he said, because “it will shift the focus” and “then the whole [forthcoming presidential] debate is going to be about what Biden said or didn’t say, Biden said he would or wouldn’t.”
This nonanswer was like pouring honey over a dead javelina in the Sonoran Desert and daring the fire ants not to come for it. Even though both moderator Chris Wallace and President Donald Trump grilled him on court-packing at the Sept. 29 debate, he dodged their legitimate questions and continued to dodge until, a week ago, George Stephanopoulos of ABC News got him to promise a more substantive response before the election. Then O’Donnell finally elicited something passing for an answer this week.
Biden quivered at the question because he knew that an answer in the affirmative would look like a ploy to further politicize the court and result in a lot of angry yelling from Republicans. An answer in the negative, on the other hand, he had to know, would make him appear wishy-washy to the progressives in his party and prompt a lot of angry yelling from them. What Biden failed to anticipate was that giving no answer to the question might provoke angry yelling from everybody, which it did. Hence, his belated decision to commissionize the court-packing issue. Biden further submerged the court-packing issue by making his prospective commission’s study not just about court-packing but a complete “reform” of the judicial system, to be completed in 180 days after its establishment.
Some aspiring court-packers thought they saw through the Biden plan. Aaron Belkin of Take Back the Courts and Brian Fallon of Demand Justice told the New York Times that Biden was just stalling, which he probably was. But the candidate finally copped some potential relief from reporters by giving a more concrete answer than “I’m not saying.”
If Biden wins the election and gets the right to launch his commission, what can we expect it to deliver? Next to nothing in the absence of Democratic majorities in both congressional chambers. As Chicago Tribune columnist Steve Chapman wrote in 2014, bipartisan presidential commissions consistently produce one form of agreement—to ignore the commissions’ recommendations. Chapman highlights a few of the best-ignored recent commissions: Obama’s Presidential Commission on Election Administration, which was largely disregarded and his National Commission on Fiscal Responsibility and Reform (Simpson-Bowles), which was praised as much as it was snubbed. Writes Chapman, President George W. Bush pretty much did the opposite of what his 2006 Iraq Study Group recommended.
Just two years ago, Trump dissolved his Advisory Commission on Election Integrity when it became apparent that it couldn’t deliver the conclusion he sought. President Ronald Reagan round-filed the Gwirtzman Commission’s recommendations on Social Security and Medicare. And in 1972, President Richard Nixon famously buried a presidential commission’s advice to decriminalize marijuana and piloted the drug war to new altitudes.
To paraphrase Marcus Raskin, the law is just politics frozen in time. Expanding the number of judgeships, as the court packers and other expansionists propose, would give a future president the incalculable power to unfreeze the law and then make it solid again in his image. Such a judicial makeover might take decades for the Republicans to undo, so it’s impossible to imagine the bipartisan spirit guiding any prospective Republican commission member to sign on to a “recommendation” like this that would voluntarily cede back to Democrats the judicial upper hand they have worked so hard over the past decades to secure. The commission members will surely fight every battle to a draw and settle on only the most anodyne recommendations.
The best reason to bother with either proposing or establishing a commission—and I think this is where Biden is coming from—is to defuse his party’s drive to retake the judicial branch just long enough to allow him to start packing the court the old-fashioned way: Year by year, one replacement judge after another.
Not even President Franklin D. Roosevelt, the most popular modern president, succeeded in packing the court. And Joe Biden is no Franklin D. Roosevelt. Send court-packing ideas to Shafer.Politico@gmail.com. My email alerts and Twitter seek appointments to a presidential commission to study the abolition of my RSS feed.