After much hounding over the question of court-packing while Amy Coney Barrett coasts to confirmation on the Supreme Court, Joe Biden has finally floated his big plan for reforming the very broken judiciary branch. And it looks a lot like many of the methods to deal with GOP obstructionism that the Democrats tried and failed last time they were in power.
In a clip from an upcoming 60 Minutes interview which was released on Thursday, Biden said he would form a bipartisan commission to study the issue of the courts. “If elected, what I will do is I’ll put together a national commission, bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative,” Biden said. “And 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 whack.”
“You’re gonna find there’s a lot of conservative constitutional scholars that are saying that as well,” he added. “The last thing we need to do is turn the Supreme Court into a political football.”
It was better when Biden was avoiding an answer to this question. To start, the Supreme Court is a political football—it’s nine of the most powerful people in the country, and they have to be approved by the other two branches of government, not picked out of a hat randomly. Second, there are very few people who wouldn’t vote for Biden based on his positions on court reform or Senate procedure, and all of them have a fellowship at the American Enterprise Institute.
And third, “out of whack” really undersells what the GOP has done to the judiciary, more often than not with Democratic support. A more accurate description would be that the courts are purposefully designed to uphold conservative laws and legal challenges to liberal legislation. It wasn’t an accident or a result of the archaic nature of the system that the GOP scooped as many 32-year-old Hillsdale College graduates onto the federal courts as the Senate calendar will allow. This was a very intentional part of their strategy, and they had the power to do it, so they did it.
As is his instinct, Biden is trying to strike a middle ground—convincing Democrats and the left that he’s open to trying to fix a court system that is clearly stacked against Democrats for the next thirty years, while also reassuring moderate Republicans, conservative Democrats, and people with a terminal case of lawyerbrain that he won’t fuck with the inner workings of the system too much. And so that’s where we get the proposed Bipartisan Study Commission, which—like nearly every other Bipartisan Commission to Study Anything at any level of government in America—is where progress goes to die.
But partially because Biden comes from a tiny state that has had centrist political leadership for decades, and partially because he was in the Senate for 36 years and prided himself on making common cause with segregationists and liberals alike, there is no idea Joe Biden likes more than getting everyone in a room and hashing out the big problems with input from all sides. It’s a compulsion, and it hasn’t completely died off for him even as the GOP has lurched further and further to the right.
It’s not like Biden doesn’t have personal experience with this, given that an insistence on bipartisanship was partly responsible for some of the most public failures of the Obama era. Simpson-Bowles, the Supercommittee, even an ill-fated obsession with getting Chuck Grassley to vote for the Affordable Care Act—all of these things were meant to give the impression that we had finally attained post-partisanship and entered an era of somewhat unified national government. Instead, they only served to give the GOP a larger platform when its own politics had been soundly rejected by voters in 2008 and 2012.
The problem is only going to be more pronounced when it comes to the courts. Republicans do not want to change the federal bench, because the system works for them.
Sure, there may be some conservative “constitutional scholars” out there who may lend their support to a moderate reform plan, like the term-limits plan floated by Democratic Reps. Ro Khanna, Don Beyer, and Joe Kennedy. But none of those people have any actual heft in the conservative movement or Republican Party. You see GOP former commerce secretaries, members of Congress, FBI directors, and people who spent a lot of time “doing nonprofit work” in South America in the eighties endorsing Joe Biden. But do you see any current Republican members of Congress doing the same thing, even as Trump looks extremely likely to lose in less than two weeks? Because that’s a good indication of how many Republicans will be willing to help the Democrats reform the court.
The GOP has ruthlessly wielded its power over the past six years and will continue to do so in whatever states they run after the election. They’ve had their turn. If Biden and the Democrats really want to gain anything from their perspective, they’d be better off not tying their hands behind their backs and instead decide to use power when they have it for once.