WASHINGTON — After weeks of ducking the question, Democratic president nominee Joe Biden finally offered a response to the question of whether he would seek to expand or reform the U.S. Supreme Court. Well, kind of.
Biden told CBS’ 60 Minutes that, if elected, he would appoint a “bipartisan commission of scholars” to come up with possible reforms for the Supreme Court and the federal judiciary. The liberal base of Biden’s party and some Democrats in Congress have pressured him to consider expanding the size of the high court to dilute the court’s conservative ideological tilt. If Republicans confirm Judge Amy Coney Barrett — who adheres to the originalist interpretation of the Constitution, doesn’t understand the science of climate change, and once endorsed the view that Roe v. Wade was a “barbaric” decision — the Supreme Court will have six conservative judges to three liberal ones, locking a pro-corporate conservative majority for decades.
In his 60 Minutes interview, which will air in full on Sunday, Biden said the U.S. judicial system was “getting out of whack” but stopped short of supporting court packing. He said he would ask his special bipartisan commission to deliver recommendations within 180 days of him taking office. “It’s not about court packing,” he said. “There’s a number of other things that our constitutional scholars have debated, and I’ve looked to see what recommendations that commission might make.”
Presidential commissions of the bipartisan, blue-ribbon variety are typically the place where policy reforms go to die a slow, bureaucratic death. But as Rolling Stone recently reported, scholars and thinkers on the liberal and conservative ends of the political spectrum have floated a variety of possible reforms short of packing the court that could lower the temperature on the nation’s judicial system. One idea is fixed term limits for Supreme Court justices, so that the unexpected death of a justice doesn’t create what can feel like is an existential political crisis. Another is rotating judges from lower federal courts onto the Supreme Court as a way to refresh the court’s composition.
The issue of court packing took on renewed urgency among liberal voters and activists after the death of Justice Ruth Bader Ginsburg in September. Ginsburg’s passing gave President Trump the chance to confirm his third justice to the high court in less than four years, and Senate Republicans have prioritized through the confirmation of Trump’s pick, Judge Amy Coney Barrett, above all other legislative priorities, including a new Covid-19 relief package. (Senate Republicans are planning to confirm Barrett’s nomination next Monday, eight days before election day, in one of the fastest confirmation processes in history.)
Biden has shied away from taking a firm position on court packing. He offered an infuriating answer earlier this month when he said voters would know his position on court packing “when the election is over.” He added, “Now, look, I know it’s a great question, and y’all — and I don’t blame you for asking it. But you know the moment I answer that question, the headline in every one of your papers will be about that.” Well, yes, Mr. Vice President, that’s how democracy works.