Punt: Biden's answer on Court-packing is ... a presidential commission

Punt: Biden's answer on Court-packing is ... a presidential commission

Last week he promised voters an answer before Election Day about how he’d handle the left’s desire to expand SCOTUS. This new clip from his upcoming “60 Minutes” interview vaguely resembles an answer, I guess.


Sort of? If we’re squinting.

Ironically, the clip is circulating a day after Trump dinged him for once having supported the work of the tea-party-era Simpson-Bowles deficit commission. That panel’s work led nowhere, as is customary for commissions; they couldn’t even get Paul Ryan to vote for their proposal in order to force it before Congress for consideration. In government, if you want to solve a problem, you call up the other side and you solve it. If you want to punt while creating the appearance that you’re doing something to solve it, you form a commission.


Guess which option Biden prefers vis-a-vis court-packing.


Ed messaged me when he saw that clip: “Biden’s been in Washington for 47 years … and he needs a commission to tell him what to think about court packing? FFS.” Hey, sometimes it takes a man a half-century to make up his mind on policy.


Either that or his mind was made up long ago and he’s grasping for a way to let progressives down easy.


Biden’s cagey in some of his language — this is a “live ball,” the commission might go “well beyond” court-packing — but I think he’s trying to hype the mushy prospect of “reform” without committing to anything specific. What he says at the end about not wanting to turn SCOTUS into a political football is the tell about his intentions. That’s a core critique against expanding the Court: If Congress ends up in a partisan tit-for-tat by adding seats every time one party or the other takes power, the judiciary will lose whatever trust it still enjoys as a nonpartisan institution. He’s trying to placate disappointed lefties by promising them some sort of change, or at least a gesture towards change, knowing full well that the votes to pack the Court won’t be there in Congress even if Democrats blow the roof off next month.


Ramesh Ponnuru recognizes the game he’s playing:



Biden’s comments make Court-packing less likely. His plan delays any legislative action until after his honeymoon period (assuming there is one) is over. It also means that any action would happen after the Supreme Court has, in all likelihood, let Obamacare stay in place — draining more air out of the Court-packing trial balloon. And he is trying to broaden the conversation to proposals other than packing the Court. Putting forward several competing ideas, rather than one clear and simple one, is a recipe for bogging down the campaign to make structural changes to the Court — as Biden has to know. Finally, the comments are a clear signal that Biden is unenthusiastic about Court-packing, knows the public is, or both.



Most progressives will see right through this, but Biden was also cagey in running down the clock before springing it on them. Some of them have already voted. And the ones who haven’t are now so amped up to beat Trump with the election less than two weeks away that they’re destined to let him slide on it. Meanwhile, the fact that he’s promising a bipartisan commission involving conservative legal scholars is good for his political brand. He could and probably will frame this proposal tonight as a needed salve to the political wound caused by every new Supreme Court vacancy nowadays. “Look, folks, we all understand we can’t carry on this way with partisan nuclear war every time a seat opens up. Both sides have done things to make the confirmation process nasty and bitter. We need reform that both parties can live with.” That would be right on script for his “heal the country” campaign message vis-a-vis Trump.


Ponnuru notes elsewhere that the reforms proposed by the commission are likely to involve some sort of independent bipartisan panel to recommend future SCOTUS nominees. That would be illegal, he points out, if the panel were given any formal power — the only players in the constitutional process are the president and the Senate — but of course the Biden White House could establish an advisory committee with informal power to either propose nominees or vet a nominee proposed by him. That’ll get complicated with the left if the panel ends up endorsing centrists over ideologues, and of course it risks running into problems with Republicans. Would a GOP successor to Biden feel any public pressure to keep the advisory panel intact upon assuming the presidency? Would any Senate Republicans like Romney or Murkowski agree to give the panel’s endorsement extra weight in deciding whether to confirm a Biden nominee?


But those are questions for next summer, if in fact Biden becomes president. For now, he’s trying to get to the finish line without rupturing his coalition.