Charlotte, NC — The Biden “Executive Order” administration has started moving forward with creating a ‘bipartisan’ commission to study reforms to the Supreme Court and the federal judiciary.
Ironically, this alleged ‘bipartisan’ commission will be housed under the purview of the partisan White House Counsel’s Office and filled out with the behind-the-scenes help of the Biden campaign’s lawyer, Bob Bauer. Bauer will co-chair the commission with a specific mandate undecided. However, the commission is moving forward as some of its members have been selected according to multiple people familiar with the discussions.
One of the members of the commission is Christina Rodriguez, a professor at Yale Law School. She is also former deputy assistant attorney general in the Obama Justice department and will join Bauer as co-chair. Along side Rodriguez, Caroline Fredrickson and Jack Goldsmith will also serve on the commission. Fredrickson is the former president of the American Constitution Society and Goldsmith is a Harvard Law School professor and former assistant attorney general in the Bush DOJ.
Fredrickson has hinted that she is intellectually supportive of ideas like court expansion. In 2019, she said in an interview with Eric Lesh, the executive director of the LGBT Bar Association and Foundation of Greater New York: “I often point out to people who aren’t lawyers that the Supreme Court is not defined as ‘nine person body’ in the Constitution, and it has changed size many times.”
According to Politico, Rodríguez’s opinions on court reforms are less clear. Goldsmith’s selection, meanwhile, is likely to be the one to frustrate progressives. A senior fellow at the Hoover Institution, Goldsmith did not support Trump and is a friend and co-author of Bauer. But he was a vocal advocate of Brett Kavanaugh’s appointment to the high court — an appointment that sparked Democratic advocacy for expanding the number of Supreme Court seats.
“He will also be an influential figure within the Supreme Court building,” Goldsmith wrote in 2018 about Kavanaugh in a Time article titled, “Brett Kavanaugh Will Right the Course of the Supreme Court.” “He is a brilliant analyst with a deep scholarly and practical knowledge of the law. His legal opinions are unusually accessible. He is a magnanimous soul.”
Bauer, who is not planning to go into the administration full-time, is himself a proponent of term limits for federal judges. He has been helping with the creation of the commission and, according to a person familiar with the deliberations, initially proposed the idea of forming a commission to study the issue of court reform.
Throughout the “Basement Campaign” from Joe Biden’s team, his statements were intent on being vague and obfuscated his true feelings on the subject. During the months of October and early November 2020 before the election, Biden would always ignore the questions and pivot to answering the question as a Trump tactic he wasn’t going to submit to. In fact, Biden’s responses were always something like this:
“[Trump] always wants [you to] take the eye off the ball, change the subject. I’m not going to play his game,” Biden during a Las Vegas in the campaign.
In fact, Biden was asked the same thing by reporters in Arizona a few days later saying: “[Voters will] know my opinion on court-packing when the election is over. It’s a great question, 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.”
The issue was front and center during the Sunday talk shows, with Republican Sen. Ben Sasse of Nebraska calling Biden’s non-answer “grotesque” on Fox News Sunday.
All these non-answers did was make it increasingly clear that simply dismissing the issue with a “wait and see” response didn’t make the questions go away. In fact, they just added fuel to the political fire. But now that he is no longer a candidate and is the president. In fact, a White House official recently said the following:
“The President remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks.”
Keeping the judiciary separate from manipulation by the political branches was one of the reasons for American independence from Great Britain. Chief Justice William Rehnquist once described judicial independence as the “crown jewel of our system of government.”
The idea for a commission came together amid the push by Republican senators to confirm Amy Coney Barrett to the Supreme Court in the weeks before the November election. Under intense pressure to consider reforms to the Supreme Court’s composition — including court expansion — Biden performed a classic Washington, D.C., punt. He announced in October that if he was elected, he would form such a commission to study structural changes. But Biden also conceded he is “not a fan of court packing.”
“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want,” Biden said in a “60 Minutes” interview last October before the election. “Presidents come and go. Supreme Court justices stay for generations.”
Progressive groups pushing for court expansion responded with skepticism to Biden’s announcement at the time. And they’ve remained skeptical to this day.
However, perhaps this commission is Biden’s way of pushing the discussion off to the side. Aaron Belkin serves as the director of the progressive group called Take Back the Court. Belkin stated that “Commissions are often places where ideas go to die and there is no time on the clock to reform the court.” Belkin has often advocated for adding seats to the Court. “The entire agenda of what needs to get done is in jeopardy thanks to stolen federal courts.”
“We know,” he added, “that court expansion is the only strategy to allow the administration to solve the problems facing the country.”
However, if the independence of the Court is gone, it would take on an even larger role in deciding fraught political questions than it does now. The temptation for a successive President whose party enjoys majority control in the House and Senate to pack the court further would likely be irresistible. Let’s hope and pray this remains the case.
In a short time, the judiciary could largely supplant Congress as the chief legislative body. Legislative and constitutional questions would be decided, undecided, and re-decided with every swing of the electoral pendulum.
No government so unstable could last. Packing the court will only ever yield short-term political victories at the cost of the long-term health of our Republic even if the Biden administration has the commission focus on a review or restructuring of the lower courts.
Any major structural reform would still be a heavy lift, as several Democratic senators have signaled their opposition to such measures. Senate Majority Leader Chuck Schumer said Monday he was waiting for Biden’s commission to decide a path forward on reforms to the Supreme Court.
So-called Court-packing would be the equivalent of launching a nuclear warhead — an extreme course of action that would require a reciprocal response. That’s why, for the better part of a century, both the Left and the Right have roundly condemned the idea. It’s only this past presidential election that support for Court-packing has gone mainstream, with prominent members of the Democratic Party openly considering it.
Why is President Biden, who knows better, indulging this? Perhaps, it’s because he knows full well that what is being proposed by his party is monstrous and so hopes to sidestep it entirely. Cue the tape:
Biden refers to court packing a "power grab" in 2005: pic.twitter.com/AhQWp1a8F3
— Eddie Zipperer (@EddieZipperer) October 10, 2020
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