The Deep Wisdom of Joe Biden’s Judicial Commission
After weeks of being pressed hard on the issue of packing the federal courts to compensate for Republican efforts to turn the judiciary into a functioning arm of their party, Joe Biden finally promised an answer before the election. So, in an interview on the CBS news program 60 Minutes he said he would…establish a commission of constitutional scholars to look into it.
This was obviously not the answer a lot of progressives were hoping for. And no one is ever thrilled by the idea of a politician promising a “blue ribbon commission” when asked to take a stand on an important issue. An editorial in my hometown newspaper described Biden’s answer as a passing of the buck with “the backbone of a buttered noodle.”
But in truth Biden’s answer was a good one.
Those pushing the former vice president to come down firmly on one side or the other of the issue believe there’s a pat answer to the long Republican project of politicizing the judiciary. They’re wrong.
It is true that the Republicans under Senate Majority Leader Mitch McConnell and President Trump have done immense damage to the integrity of the federal courts. Conservative judges are compounding the problem, in particular with a mishmash of late-breaking decisions that threaten to disenfranchise a huge number of voters in the 2020 election.
In my home state of Minnesota we just learned the Eighth U.S. Circuit Court of Appeals may decide after the election whether or not to throw away ballots that had been mailed in by voters who were just following the instructions provided by our Secretary of State. That alone, if it were to actually happen, might be reason enough to toss the whole system into the fire.
But we’re not quite there yet. Hopefully we never will be.
The reputation of the Supreme Court itself hangs by a thread. One more horrible decision like Shelby v. Holder — which effectively gutted the voting rights act — and we may see the citizenry marching up the steps of the Supreme Court with pitchforks and molten tar.
In the eyes of those who don’t share a right wing mindset, Trump’s first term has left us with one justice occupying a stolen seat, one frat boy/former political operative who’s words on voter suppression sound a lot like GOP talking points, and one justice installed by an astonishingly hypocritical confirmation process so rushed it’s impossible to know exactly what to make of her. Our only real evidence of Amy Coney Bartlett’s judgement so far is her decision to put herself at the center of the infamous White House superspreader event.
Given all that, it would be foolish to make a campaign promise swearing off one of the few constitutional tools available to fix the problem.
And yet, an ironclad campaign promise to pack the courts would be almost as unwise. History is full of examples of jurists who’ve risen to the occasion when elevated to the high court. Much to the surprise of those who appointed them. Biden is wise to leave the window cracked open to this possibility.
We should know fairly early in a Biden term whether his inclination to give people a chance to do the right thing will work with a Trump/McConnell judiciary. We might even know in the days following the election, if the courts try to put their thumbs too heavily on the GOP side of the scale.
The deeper wisdom in Biden’s idea of addressing the problem with a blue ribbon commission is that any changes to the judiciary will require Democratic control of the presidency and both houses of Congress. If the raw political power needed to make such a move is exercised too bluntly, the Democrats may see their political capital evaporate rather quickly. The first thing the Democrats need to do is win the argument. Convince the people beyond the progressive base that expanding the judiciary isn’t just a grab for power, and that there’s a reasonable plan for doing so on the table.
A lot of smart people have been thinking about this for some time. The idea of assembling them into a commission strikes me as a good sign of how a Biden-led Democratic government might play out.
Giving the Trump/McConnell judiciary a length of rope with which to hang itself may also help the Democrats make their case.
I admit that as a marketing guy I did cringe when I heard the words blue ribbon commission. The concept has been misused by politicians so often. No less an ally than Biden’s old boss Barack Obama once told a crowd, “A commission. That’s Washington-speak for we’ll get — we’ll get back to you later.”
If I were writing Biden’s statement I would have skipped mentioning the commission and just made it a simple declaration. “If the American people elect me to govern, then I intend to govern. If the courts have become so broken they make governing impossible, I’ll use all the constitutional tools available to fix that.”
But there are ways to apply those tools with finesse. A commission of constitutional scholars would be useful in the effort. And here’s a thought on the make-up of said commission. If memory serves me right, Barack Obama used to teach constitutional law.