President Joe Biden appears to be following up on his campaign promise to do something about the Supreme Court, and the federal court system in general, which has been infused with over 200 Trump-appointed judges, including three new justices on the nation’s highest court. Politico is reporting that the president is in the process of appointing members to a “bipartisan” commission to look into the issue of “court reform” and report back in 180 days with recommendations.
Chalk up the sudden interest in “court reform” to former President Donald Trump’s success in nominating conservative federal judges, which has resulted in a new 6-3 Republican-appointed majority on the Supreme Court. For years, if not decades, liberals enjoyed either a majority or near majority on the high court that allowed them to achieve policy objectives via judicial fiat that they could never have achieved through legislation.
Although having more so-called conservative justices on the court does not always equate to conservative results – see Bostock v. Clayton County, for example – the new high court composition has set liberals’ hair on fire. Worried that their judge-made law concerning abortion, same-sex marriage and gender ideology, for example, are in jeopardy, cries in favor of expanding the number of justices from nine to some new number reached a crescendo in October as Justice Amy Coney Barrett was sworn in as the replacement for the late Justice Ruth Bader Ginsburg, a liberal icon.
At the time, then-candidate Joe Biden responded to a question from “Sixty Minutes” interviewer Nora O’Donnell about possible court-packing by stating that one of his first tasks as president would be to appoint a bipartisan commission to study various alternatives, including court-packing, to resolve what he said is a court system that “is getting out of whack.”
He didn’t explain what “out of whack” meant, so we’re left to surmise that it meant too many judges with a conservative judicial philosophy who interpret the Constitution and laws as written and originally understood. Most conservatives would take issue with Biden’s characterization. In fact, most people believe that’s how the judiciary should operate in the first place. They don’t consider that “out of whack.”
Even Biden himself has not been enthusiastic about court-packing in the past, including a 1983 condemnation of President Franklin D. Roosevelt’s attempt to pack the Supreme Court, which he called a “bonehead idea” at the time. Even on the 2020 campaign trail, he expressed a less-than-enthusiastic response to court-packing when asked.
But that was then. With the ascendancy of new, conservative justices on the high court, liberals in Biden’s base have been pushing court-packing as a way to win back the court.
Whether Biden is serious about court-packing or simply wants to appease his vocal left-wing base on this issue by referring the issue to a potentially stalemated commission remains to be seen.
And how bipartisan the new commission will be is still an open question. The names being floated as co-chairs of the commission are Bob Bauer, Biden’s campaign lawyer, and Cristina Rodríguez, a former deputy assistant attorney general in the Obama administration. Two other names mentioned are Caroline Frederickson, the former president of the liberal American Constitution Society, and Jack Goldsmith, a Harvard law professor and former assistant attorney general in the Bush administration.
We’ll know more when the commission is formally announced, but we’ll ultimately have to wait another 180 days after that before we learn what the commission has come up with. At that point, it will become a political issue for Congress to decide.
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