Joe Biden is proving it’s possible to be unprincipled and cowardly yet still promote a semi-good idea at the same time.
CBS News on Thursday released a snippet from its upcoming 60 Minutes interview with presidential candidate Biden in which Biden again is asked to say if he, as president, would support a “court-packing” move. (Court-packing, since 1937, has meant expanding the size of the Supreme Court beyond the nine justices it has featured for 151 years.) For weeks, Biden had refused to answer the question, thus leaving open the possibility even though he had strongly opposed it for at least 37 years.
The hypocrisy of his change of heart away from firm opposition to the scheme, and the cowardice of his refusal to answer, would be remarkable if both attributes had not already been such notable parts of Biden’s character for 48 years in public life. Biden has changed position with the Democratic Party’s political winds on abortion, busing, criminal justice, and numerous other issues through the years.
Having sown confusion, Biden obviously knew he would face the question again, and CBS’ Norah O’Donnell did her job. This time, while still ducking the main question — again, showing political cowardice and shiftiness — Biden at least offered a semi-new idea in lieu of a direct answer.
First, let’s not beat around the bush: There is no good reason for Biden not to level with voters. As recently as last year, he utterly rejected court-packing, and back in 1983, he called it a “bonehead idea.” He was right back then. Court-packing would be a blatantly political move against what theoretically and ideally is an apolitical branch of government. The idea has been overwhelmingly rejected by both parties because, as Biden himself said, it would be “a terrible, terrible mistake” that would “put in question … the independence of the most significant… body in this country, the Supreme Court.”
If Biden now wants to be a bonehead, he needs to tell everyone so in clear terms.
No matter how else Biden wants to reform the courts or the judicial selection process, it should be easy for him to give a yes-or-no answer on court-packing. With O’Donnell, he again ducked the question, merely agreeing with her in describing it as a “live ball.”
Biden doesn’t lead; he cowers.
Nonetheless, Biden did propose a useful idea, even though it came in the form of what often is a typical political dodge. He proposed a bipartisan commission of “constitutional scholars” to suggest ways to reform the courts, and presumably, the way judicial nominations are “being handled.”
Never mind that Biden is one of the four or five people most guilty of poisoning the nomination process. The reality remains that it is poisoned, and the courts, in turn, have been at least partially poisoned, and that draining poison is a good idea.
Even though appointing commissions can be a convenient way for politicians to evade direct responsibility, sometimes commissions can be useful. The military base-closing commission in the 1990s proved quite successful and constructive. President Clinton’s bipartisan commission on Medicare in the mid-late 1990s produced a superb draft of a plan, only to have Clinton appointees kill it as part of political maneuverings stemming from the Lewinsky scandal.
In the federal courts, the political stakes have been hiked well beyond all the Founders’ intentions. Nominees regularly have their character smeared without a shred of evidence of actual bad character, senators reviewing nominations act as Star Chamber prosecutors rather than honest brokers, and, once finally confirmed, judges use their lifetime-appointment status to manipulate their own retirement dates for best political effect.
The sorts of reforms about which Biden is talking — ones that could be used either in addition to, or preferably instead of, the awful idea of court-packing — have been bubbling up for the past few weeks. They include judicial term limits, a random-selection lottery system for the Supreme Court, an appointment method designed to balance the high court’s partisan makeup, and something called “jurisdiction stripping,” which long has been more favored by some conservatives than by liberals, but which liberals suddenly are embracing.
Some of those ideas have at least some merit (I myself am partial to careful jurisdiction stripping). There is nothing wrong with substantive, creative thinking, especially by a truly bipartisan commission, to attempt to cure a growing political cancer. If Biden would have the guts again to rule out the obviously partisan scheme of court-packing, then his broader idea of a reform commission should be welcomed by all sides.
The essential word, though, is “if.” Court-packing is a rank and nasty political threat that should have no place in the discussion. A candidate who won’t rule it out should never be elected president.
