President Joe Biden is creating the wrong commission to solve the wrong problem regarding the federal judiciary.
Actually, it’s worse than that: Biden is solving nothing, but instead risks ruining something that actually works well and in doing so will undermine faith in the American system of justice and further violate his bad-faith promise to run a “unifying” administration.
Biden’s 36-member commission would take 180 days to analyze whether to expand the size of the Supreme Court from its long-standing number of nine justices and also whether to impose some sort of term limits on justices. While the commission will issue no recommendations, its “report” will certainly be used by advocates of court expansion as justification for “packing” the court along the lines of what President Franklin Roosevelt tried, but blessedly failed, to do in 1937.
We can be rather certain the commission is rigged to encourage this result because it is being led, not in a bipartisan fashion, but by noted liberals with close ties to the Obama-Biden orbit and to the leftist legal activist world that favors court-packing. Co-chair Bob Bauer was Obama’s White House counsel and is married to Biden senior adviser Anita Dunn, a highly partisan warrior. Co-chair Cristina Rodriguez was deputy assistant attorney general in the Obama Department of Justice.
The rest of the commission, despite featuring a few respected conservative scholars, also leans heavily leftward.
The Supreme Court has remained at its current size of nine members since the end of the Civil War, and for good reason. Adding members to it automatically benefits the president then in power, who can create a large partisan imbalance on the court to rubber-stamp his immediate political desires. Such a brazen power grab is so contrary to the American tradition that not even Roosevelt got away with it after riding high following a 523-8 electoral vote landslide.
To consider using a highly partisan “commission” as cover for such a power grab should be anathema. No commission like this should operate without full bipartisanship at the top in order to assure the public that the resulting report will be based on mutually agreed-upon need for reform.
Then again, there’s no reason even to study Supreme Court size at all. The court works just fine as it is and indeed enjoys the highest approval rating of any branch of the federal government. Two of the liberal high court titans of the past three decades, the late Justice Ruth Bader Ginsburg and current Justice Stephen Breyer, have argued strongly against court-packing. Ginsburg did so as recently as 2019, and Breyer did so just this week in a sharply worded speech at Harvard Law School.
Increasing the size of the Supreme Court, Breyer said, would “feed the impression” that the court has become overly politicized, “further eroding [the] trust” of the public.
This is not to say the entire system of nominating and approving judges is without problems, though. However, the problem isn’t how the Supreme Court operates, but rather how the Senate runs the nomination process. The political Left has turned the process into a blood sport, regularly attacking the character and motives of Republican nominees in vicious fashion (and in ways almost never reciprocated by conservatives). The use of anonymous leaks, the abuse (and subsequent elimination) of filibusters as a weapon in confirmation battles, and the level of vitriol are all out of control.
If Biden wanted to appoint a commission to recalibrate that system, to make it fairer to the nominees, and less of a star chamber, that would make sense. But to monkey with a Supreme Court set-up that has become as sacred a touchstone as anything in American civic life can get — well, that’s unacceptable. And deeply cynical to boot.
