Court Packing

Biden's Proposed Bipartisan Commission on Court Reform Could be a Hopeful Sign for Opponents of Court-Packing

The implications of this move are far from clear. But it could well be a step to avoid court-packing, rather than promote it.

|

Joe Biden.

Joe Biden's gyrations on the issue of court-packing have been the focus of much attention in recent weeks. And for good reason: packing the Court would be a terrible idea likely to seriously damage the valuable institution of judicial review.

In a recent CBS 60 Minutes interview, Biden proposed setting up a bipartisan commission on reforming federal courts:

"If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack — the way in which it's being handled and it's not about court packing. 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."

Biden continued: "There's a number of alternatives that are — go well beyond 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. Presidents come and go. Supreme Court justices stay for generations."

The implications of this statement for court-packing are not immediately clear. But if Biden (assuming he wins the election) does go ahead with the the commission plan, on balance it would be a helpful development from the standpoint of those of us who oppose court-packing.

Establishing a commission is the kind of thing presidents tend to do when they do not want to prioritize a given issue. History shows that a new president's best window of opportunity for dramatic new policies often comes within the first hundred days or so of a new administration. If Biden doesn't proceed with court-packing until the commission is appointed and completes its deliberations (which he says it would have 180 days to do), that would take us well past the initial honeymoon period when a new president's influence is at its height.

Moreover, if Biden is serious about making the commission "bipartisan" and including both liberal and conservative legal scholars, then it is unlikely the commission would recommend any form of court-packing. With the exception of Charles Fried, I cannot think of any even remotely prominent conservative (or libertarian) legal scholars who supports court-packing. The issue is one that unites the legal right, but divides the left (where there are still a good many court-packing skeptics). Thus, any balanced commission would either reject court-packing or at least divide along ideological lines on the subject.

If I'm right about the timing and composition of the commission, then Biden may be using the idea to sideline court packing and instead pursue reforms that have broader support, such as a constitutional amendment imposing term limits on Supreme Court justices which has widespread cross-ideological support among experts. That would be consistent with his own longstanding distaste for court-packing and with his statements in the 60 Minutes interview saying he wants the commission to make recommendations that are "not about court packing" and that he wants to avoid making the Court a "political football." Biden undoubtedly realizes court-packing would have exactly that effect (he has said as much in the past).

He may also want to avoid court-packing because it is highly unpopular, and making it a major initiative of his administration would be a political risk. Biden may well prefer to spend his political capital on other objectives, that are more likely to be political winners.

For all these reasons, unlike Josh Blackman, I am skeptical of claims that Biden wants to establish a commission so that it will recommend court-packing, and thereby somehow legitimize the idea. If he wanted to make a push for court-packing, the most effective way would be to just do it right out of the gate, while Democratic anger at Republican appointment shenanigans is still white-hot, and Biden's own influence is at its height.

Of course Biden could try to pack the supposedly bipartisan commission with members known to support court-packing; it would then be "packed with packers"! If he looks hard enough, he could find some people somewhere who support court-packing, but still claim to be Republicans or conservatives. But in that event, there would be little political benefit to having the commission at all, since its recommendations are unlikely to have any sway with anyone who doesn't already support court-packing. The supposedly right-of-center members (with the possible exception of Fried) would be relative nonentities with little credibility.

Alternatively, Biden could try to engineer a commission that would recommend one of several proposals out there, that are functionally equivalent to court-packing, but have slightly different structures and labels, such as "rotation" and "court balancing." But, once again, none of these are likely to be endorsed by credible conservative or libertarian experts (Fried, again, perhaps excepted). And, as with traditional court-packing, if Biden really wants to pursue them, his best shot would be to just dispense with any commission and make a push right out of the gate.

In sum, if Biden does choose to proceed with the commission idea, that might well be an indication that he wants to avoid court-packing.

Even if Biden initially avoids packing, that doesn't mean the idea will be dead forever. Unfortunately, over the last two years, it has become a part of mainstream political discourse within the Democratic Party. Thus, even if Democrats do not pursue it 2021, it could be revived later. But the more time passes without a serious court-packing effort, the more the political norm against it might be rebuilt. In the long run, hopefully, we might even preclude it by constitutional amendment, though I'm not optimistic that can happen anytime soon.

Obviously, the fate of court-packing doesn't depend on Biden alone, though—if he wins the election—he will be the single most significant player. It also depends on the size of any Democratic Senate majority. If, as is likely, that majority is relatively small, court-packing could only pass with the support of moderate swing-voters who may be unlikely to warm to the idea, even if Biden backs it.

It would be a mistake to conclude from all this that we are out of the woods on court-packing. If Biden wins, he could still decide to do it, and there are obviously a good many people in his party that would like to see it happen. If I didn't think there was any real chance of court-packing in the event of a Biden victory, I would not have proposed various deals to try to head it off. At the moment, however, Biden seems more like a man who is trying to find a way to avoid it, than one maneuvering to make it happen.

UPDATE: I wrote this post before I saw Eric Boehm's very similar take on the commission proposal:

[T]his new promise to create a "national commission" seems mostly like a way to make the question go away. It's a tried and true political strategy: punt a controversial issue to a panel of supposed experts to make it look like you're doing something. As a longtime creature of the U.S. Senate—which isn't called the "world's most deliberative body" for nothing—Biden understands the value of doing nothing while looking like you might do something someday.

Still, there are two things we can definitively say about Biden's newest take on court-packing. He has objectively backed away from his former position of opposing the idea, even if he's opening the door only a crack. And he's committed to waiting at least six months into his potential first term before doing it—in other words, it's not important enough to rise to the very top of a Biden administration's agenda. That's good.

NEXT: Lawyer Dean Boland Asks Google to Deindex Court Opinions, Newspaper Articles, Blog Posts About Him

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. You know what would avoid court-packing?

    If leftists decided to care about America more than settling scores and forcing everyone to conform to leftist dogma, we could avoid court-packing.

    Yep, just stop being complete jerks to your fellow Americans for a while and then no court-packing is required.

    1. According to liberals, it’s impossible to be LGBTQ+ and live a fulfilling life without having personally “cancelled” at least 200 bigots on Twitter by outing them to their family, friends, and employers and having a streak of 101-0 Supreme Court rulings stating that they’ve found a textual basis for gay rights in George Washington’s diary.

      1. yea let me guess the definition of “bigot” are those they disagree with

      2. Heaven forbid that rights that extend to hetero couples (visitations in hospitals, tax breaks, etc.) be applied fairly even if it makes some bigots feel queasy.

        1. I never had a problem with visiting friends in the hospital. They don’t have a guest list.

    2. Wow…..that’s some revisionist bullshit if I’ve ever heard it.

      Face it- Rs wanted to hold off in 2016 and said screw you Obama establishing a precedent. Now they don’t because all they want is unbridled and unchecked power.

      Don’t give a flying fuck if Biden adds 11 justices. Pack that thing like a sardine can.

      You can only blame the Rs if the institution as a whole goes down the crapper due to their actions.

      1. The great Dem defense for doing horrible things… “But… but… they MADE me do it!”

      2. As Obama famously said, elections have consequences. I don’t like what they did in 2016. However, they had the votes to do it, and I’m fairly certain that the voters punished them for it. However, it was not enough of a change to make a meaningful difference. We will see now if the inconsistency is enough to make them lose more seats.

        In the end, precedent is unimportant. Everything comes down to the election. If we don’t like what they did, we can vote them out.

      3. What if you cared about America and decided not to destroy it though? Then it might not be destroyed.

    3. You what would avoid court packing.

      If conservatives would allow women to make choices about their own body, or allow people to marrying the person they love, or allow people to vote for the person they choose to represent them.

    4. Ben_,

      Try to understand this:

      There are those of us who think Trump and his henchmen are the jerks – and that’s a polite term – destroying America, and that his supporters are complicit.

      1. “Destroying America” with criminal sentencing reform.
        “Destroying America” by not getting us involved in new wars.
        “Destroying America” by negotiating peace in the Middle East.
        “Destroying America” by preserving the Constitution as written.
        “Destroying America” by lowering unemployment.
        “Destroying America” by the fastest vaccine development ever.

        Yeah, but, but, but, … but he said words we don’t like (and can’t remember the specifics of).

  2. Maybe it is just time to get the whole thing over with and start what we all know is coming….

    1. “Maybe it is just time to get the whole thing over with and start what we all know is coming…. ”

      The liberal-libertarian mainstream continue to shape American progress against the wishes of Republicans, and conservatives whine and rant about it as they continue to decline in cultural relevance while our nation improves?

    2. Yes. I want the Dems to do what it takes to hasten the civil/race war that is coming.

  3. Or Biden…you know could be an adult for once and definitively say he won’t pack the court. Would Ilya ever give trump this generous benefit of the doubt?

    1. I will give Trump the benefit of the doubt when he starts using intelligence and finesse to finding solutions to problems.

      1. Well, he has more peace agreements than Obama and Biden did…

    2. ” Or Biden…you know could be an adult for once and definitively say he won’t pack the court. ”

      You’re playing that queen-high hand you’re holding all wrong.

      You forgot the second rule in a crisis situation.

      The most important rule, though, is the third rule.

      Good luck, clingers.

  4. Charles Fried voted for Obama, so he’s kind of a fake conservative, and useful to some people as such.

  5. An astute move by Biden.

  6. The best you can say about his commission idea is that he didn’t come out and say, “Hell, yeah, I’m going to pack the Court. 17 members, here we come!”

    The worst you can say about his commission idea is that he didn’t say, “No, I’m not going to pack the Court.”

    And tell the truth: That’s pretty bad, isn’t it?

    1. Wow. Breaking news. Politician evades issue. Republic threatened.

      1. Politicians evade issues where they think the answer would hurt them. As unpopular as Court packing is, the only answer that would have hurt Biden was, “Yes, I plan to pack the Court.”

        So, yeah, the fact that he’s evading giving a straight answer is a bad sign from the perspective of people who don’t want the Supreme court turned into a rubber stamp for the Democratic party.

        1. Nope. “I will not pack the Court” would have hurt him plenty. A lot of people want the Court expanded in response to the GOP’s abuses.

          All of his prior answers on this point have indicated that he really doesn’t want to do it. Doesn’t mean he ultimately won’t, but all signs are that he’s hoping he doesn’t have to.

          1. Anyone ask President-in-waiting Harris her opinion? She’s going to be President before, any Commission makes a recommendation.

        2. The lefties are already complaining that this commission is a sell out.

          So, I don’t think it’s politically “safe” for him to renounce court packing.

  7. That is a big laugher for sure. Who thinks the “bipartisan commission” wouldn’t have a majority made up of dyed in the wool progressives? His plausible deniability is easy. Ask the ABA (a strongly progressive institution) for a list of commission members, approve it, and accept the recommendation. Wow, bipartisan and neutral court packing recommendations!

    1. Bipartisan: Democrat party and Socialist Worker’s party

      1. “Democrat Party” and Socialist Worker’s Party on one side.

        Disaffected tongues-speakers and half-educated bigots on the other side.

        Where is the hope for America, Ben?

    2. “Who thinks the “bipartisan commission” wouldn’t have a majority made up of dyed in the wool progressives?”

      I do. Partisans tend to see partisanship even in good-natured attempts at bipartisanship. When the committee is announced, we’ll see; assuming the composition beforehand does little good.

  8. Maybe now someone call tell Josh Blackman to stop embarrassing himself with his posts on this blog?

      1. That was supposed to be three Praying Hands emojis.

    1. Comparing this post to Blackman’s is like comparing an actual argumentative essay to a transcript of a muttering, jaded 14 year old who just watched Fight Club and wants to compare Fight Club to everything.

  9. Walk back or FUD? Either way it looks like Biden and them dems were taking enough heat, they had to change the message.

    1. FUD. It’s just a fancier way of saying, “I’ll tell you what I’m going to do after the election.”

      1. Actually, he has a plan. He can’t reveal it because it’s under audit.

        1. But it’s beautiful. And very strong and powerful.

        2. Never said Trump doesn’t deal in FUD, too. The difference is that Trump’s tax returns aren’t a question of public policy, and Biden’s position on Court packing is.

          1. Trump’s tax returns aren’t a question of public policy,

            Maybe not, but they could be. Be nice to know about his international dealings. He could easily be beholden to people we would rather not have him be beholden to.

            1. Like Biden is? We KNOW he’s taking money through his crack addicted progeny and his brother from international sources.

      2. Preecisely.

        If there were actual journalists in the land, they would ask him :

        – what particular deficiences in the court system he perceives, that his Commision should look into
        – why this notion has never occurred to him until now, or if it has, why he has not mentioned it before, such as during the eight years he was Vice President or the previous thirty six years when he was a Senator
        – why they should have 180 days

        It’s just a move to dampen any negative electoral impact of keeping court packing firmly on the table, by help gullible moderates, independents, and passing halfwits, to dream that court packing is off the table.

        In reality :

        – it’s on the table, and what will determine whether it goes ahead is the election. D President and 51 D Senators, it’s going ahead
        – 180 days is so that it can all be done and dusted by January 2022, when the Ds could lose the Senate
        – a Commission to look into a range of things just means “we’ll be looking at how much to pack the Appeals Courts too, btw”
        – and the bipartisan Commission will run the gamut of opinion from D to E to M

        1. “180 days is so that it can all be done and dusted by January 2022, when the Ds could lose the Senate”

          Enlarging the Supreme Court will not help Democrats reduce the undeserved amplification of yahoo voices in the Senate.

          Admitting two or three states will help Democrats reduce the unearned magnification of backwater votes in the Senate.

          Perhaps we’re looking at so much progress that some people will have a hard time keeping the differing elements of progress straight?

          “it’s on the table, and what will determine whether it goes ahead is the election. D President and 51 D Senators, it’s going ahead”

          Some people seem to understand the situation.

        2. The journalists are too busy trying to dig up a sign of Trump’s fully developed health care plan the will be cheaper and better than what we have now, fully cover pre-existing conditions, etc., and is ready to be released just as soon as Obamacare is thrown out by the Supreme Court.

          What a joke. Trump lies blatantly about everything, and Biden waffles on this and it’s a BFD to conservatives who gladly swallow Trump’s mountains of crap.

          1. Biden did claim nobody lost insurance under Obamacare. And his plan would do the same.

            And, well, Trump didn’t have to sell influence through a crack addicted loser of a child to make money. Shame Joe cannot say the same.

            P.S Joe is a crook

      3. “Ya’ gotta Vote for it, to find out what’s in it.” – Cackling Nancy Pelosi

  10. Or sometimes during campaigning you say you’ll form a committee on something because you don’t want to say what you think, then after the election you come up with some excuse why you have to do it right away instead of forming a committee. If he didn’t want to court pack, he could just say it. Any other futzing around of the issue is just saying he wants it as an option.

  11. I notice that on this subject of changing the size of SCOTUS it’s always to increase it. If the Ds do it next year, then when the Rs retake power, they will also do it.

    But what about DECREASING the size? I never hear about that. How would that work? Who gets kicked off? Would the congressional legislation dictate that? Could they say longest tenure is out? Shortest tenure? Oldest in age? If so, could such a bill be tailored to effectively achieve the equivalence of impeachment without requiring a 2/3 vote?

    There’s lots of games that can be played once this can is opened!

    By the way, the most effective way to reform the court is to lessen it’s importance. In fact, the court can do that itself.

    1. You can increase the size of the Supreme court by ordinary legislation. You could decrease it that way, too, but because the Justices serve unless they retire, die, or are impeached, if you decrease it, the shrinkage would have to come through natural attrition, not kicking anybody off it.

      So, not predictable, and almost certainly resulting in long stretches where the Court has an even number of members leading to frequent ties.

  12. If any conservative (or a genuine libertarian, such as Prof. Somin) has a persuasive argument the liberal-libertarian mainstream should consider as Democrats contemplate the proper response to recent Republican conduct with respect to the courts, this would be a good time to advance it.

    Republicans have installed a series of young, strident ideologues on federal courts with 50-, 51-, and 52-vote confirmations. They have manipulated the system — which structurally magnifies the votes and voices of rural residents, and undeservedly so, in several ways — to place what seems destined to be six conservatives on the Supreme Court (most of them nominated by a president who lost the popular vote).

    I believe Democrats should and would respond to that circumstance with lawful, precedent-supported actions designed to diminish the outsize influence of backwater votes. A Senate whose actions more faithfully reflect the preferences of modern America. An Electoral College, Supreme Court, and House of Representatives do the same.

    Ending the filibuster, enlarging the Court, admitting states, expanding the House (and with it the Electoral College) and enacting a new, forceful voting rights act seem the natural measures in this context. If someone has a better idea, let’s hear it.

    May the better ideas win.

    1. I think this is pertinent, especially in light of Mr. Somin’s introduction:

      “And for good reason: packing the Court would be a terrible idea likely to seriously damage the valuable institution of judicial review.”

      Haven’t the steps to not appoint Merrick Garland and other nominees to judicial positions already damaged the valuable institution of judicial review? If we want to mitigate that damage (and I agree with the need to mitigate it), let’s open up the discussion to the ways that damage can be mitigated besides court packing.

      One reason I am heartened by a commission, besides the suggestion that court packing isn’t an immediate policy priority for Biden, is that commissions offer at least the possibility of offering other options. People who only think of commissions as feints to justify an already-decided policy understate the value of problem solving. Problem solving works better when it is a process or a dialectic, not one side trying to ram a first-draft working thesis statement down the other side’s throat. Experts draft proposals, debate them, and create a list of suggestions based on what they learn from that process. Blocking Merrick Garland was not problem-solving; contradicting the norm just set and running ahead with Amy Coney Barrett is not problem-solving. Maybe with a Democrat who is willing to not go with the most expedient and partisan solution in response to partisan gambits, we can repair a bit of the damage that has been done.

      We’ll see if the other partisans go for it. I’m not holding my breath.

      1. Haven’t the steps to not appoint Merrick Garland and other nominees to judicial positions already damaged the valuable institution of judicial review?

        Not in the way court packing would. The basic problem is court packing sets up a tit for tat where each time one party gets a majority, it will repack the Court to make sure all the cases it cares about come out the way you want.

        Well, what happens to doctrine, and to stare decisis, and to the lower courts attempting to figure out what the law is, under this scenario? Each time this happens, there are going to be a whole bunch of changes in legal doctrines, as the new justices not only overturn the politically salient case precedents but also, likely, overturn all sorts of other 1 vote or 2 vote margin precedents, including a bunch of them where the votes may not even be predictable (such as a 1 vote margin copyright case).

        This would run roughshod over the common law system. Lawyers wouldn’t be able to advise their clients what was legal. Police departments and prisons wouldn’t know what practices would be declared unconstitutional. Artists wouldn’t know when they could use something copyrighted or patented or when they could collect royalties. Contracting parties wouldn’t know if their arbitration clauses would be upheld. Suddenly, all long term expectations about the law would be upset.

      2. Why did Obama refuse to nominate someone else for the Court in 2016? Once Garland was DOA, why not nominate a replacement? Hint: Hillary was supposed to win and didn’t want to lose the chance to have the Choice. “Historic” !!

    2. six conservatives on the Supreme Court (most of them nominated by a president who lost the popular vote)

      I would be interested to see your math on this point.

      1. Gorsuch (Trump, lost)
        Kavanaugh (Trump, lost)
        Barrett (Trump, lost)
        Roberts (G.W. Bush, lost-won)
        Alito (G.W. Bush (lost-won)
        Roberts (G.H.W. Bush, won)

        It is more accurate to say that half of the conservative justices would have been appointed during a presidential term in which the president lost the popular vote. Two others were appointed after a president who had lost the popular vote in his first campaign won the popular vote in his second.

        1. Even that’s not really honest, unless you want to claim that the 2004 result is illegitimate. And there’s no serious argument it was.

          It just sounds really good as political spin to count Alito and Roberts, so liberals using that talking point do it. But it’s utter BS.

          1. Three seems right.

          2. Not to mention that we elect Presidents by the Electoral College, not the popular vote. And the candidates run their campaigns accordingly. (Except for Hillary Clinton, who decided she could ignore the Constitutional system that has been electing presidents since George Washington.)

  13. I could see a lot of good ideas generated by a commission. Like many commissions most of the ideas will never be acted upon, but the opportunity is out there to air out these ideas and that is a start.

    1. This. And by giving the Commission 180 days or whatever…that’s a long time in the minds of many voters. After 6 months, the political will will have significantly diminished. There will be plenty of other things going on in the first 100 days of the Biden Administration, much less the first 180 days, and these other things will capture public discourse, discussion, and mind space.

      1. I concur. The whole commission proposal is a way to kick the issue down the road, until it is forgotten.

  14. While Biden may not want to pack the Supreme Court, the important question is what Kamala Harris wants. It is highly unlikely Biden will either serve the full four year term, or be fully in control of the government if he does manage to sit in the Oval Office for 4 years. She is so strongly ideological that I suspect packing the court would be high on her agenda.

    1. Right idea, wrong woman. It’s Speaker Pelosi you should be mentioning.

      A president doesn’t enlarge the Supreme Court alone. He doesn’t start the process.

      The House of Representatives and the Senate start the process by passing legislation. A Senate majority and a House majority would take the lead with respect to Court enlargement. If I understand the circumstance, a Pres. Biden wouldn’t even need to sign the bill — he could merely refrain from vetoing it.

    2. Frankly I am far less worried about Kamala Harris than I am about unknown people holding the current President’s debt. Financial leverage is far more powerful than ideology.

      1. You’ve got that backwards. J. Paul Getty: “If you owe the bank $100 dollars, that’s your problem; if you owe the bank $100 million, that’s the bank’s problem.”

        1. Depends on the terms and the collateral. If Trump is personally on the hook, and I think he is, and has pledged assets he can be in trouble.

          Plus, even if he can worm his way out somehow he would face some serious losses and considerable humiliation, though I suppose some of his admirers would buy whatever story he puts out.

          1. Do you know anything about Commercial Real Estate?

            1. The real question is does Trump know anything about commercial real estate?

      2. I get that marxists like you need daddy government to take care of them God you are a moron. The president’s debt isn’t secret or unknown it’s just not public (even the president has privacy rights). Joe Biden’s post-office nest egg was secret until his son forgot to pay somebody.

        1. The President is a government employee and government employees have less privacy rights than the average person. I know of no other government employee past or present that would be allowed to hide this debt.

          1. “The President is a government employee”

            FWIW, this employee returns his salary.

            1. Yes but he is still compensated for by the citizens. He is provided living quarters, meals, travel, etc.

          2. “government employees have less privacy rights than the average person”

            I think that’s categorically false. Most government employees are not “public figures.”

            1. It is correct. Government employees at every level of government have reporting requirements that do not exist for non government employees. Many government employees are required to report second jobs. Any government employee’s salary is a matter of public report. In addition, most public employee’s email are public record and can be requested.

  15. There’s a pretty good chance that the new far-right majority on the Court will have significantly overreached by the time the commission finishes its work, and that packing the Court will look like an appropriate response. The six-month window gives them rope to hang themselves, as Roberts will no doubt be pointing out behind the scenes.

    1. Given that the Democratic understanding of “overreach” includes just upholding parts of the Constitution Democrats don’t like, such as the 2nd amendment, sure. It’s almost certain they’ll ‘overreach’.

      1. They always have to do [whatever they planned to do anyway]. Otherwise the bogeyman will kill us all. He’s always on his way.

      2. Well, for example, there’s a fair chance they’ll throw out Section 2 of the VRA, or make it obviously toothless by requiring a legislature to baldly confess discriminatory intent. Could be wrong, but I think there’s a decent chance that such a decision wouldn’t be very popular.

        1. You know, Congress could have just updated the preclearance list to be based on modern conditions, rather than those prevailing half a century ago.

          Why didn’t they? Because they didn’t want to put states the Democrats control TODAY, rather than half a century ago, in to preclearance.

          1. Section 2 is not about preclearance. Try to keep up.

            1. Also, I’m sure that, when virtually all of the Republicans in Congress (including every Senate Republican) voted to extend preclearance protections in 2006, they were doing so to help out Democrats.

  16. This Commission is a warning shot intended to intimidate the court into “good behavior” or else. Once the Court makes a decision that is unpopular with Biden’s base they could pull the trigger on increasing the size of the court.

    1. There are so many other things that could qualify as warning shots too.

      Highly partisan votes of judicial nominees? Warning shot.
      Blocking votes on judicial nominees? Warning shot.
      Refusing consideration of judicial nominees? Warning shot.
      Public debate and discussion about court packing, withholding nominees, and other issues? Warning shot.

      If all you have is a gun, everything is a warning shot.

  17. Why does the US need Biden’s Proposed Bipartisan Commission on Court Reform? The court is not broken. Does Biden expect the commission to require the Supreme Court to have a balanced number of justices on each side of the political divide? If not just what could court reform accomplish?
    The problem is political and not judicial. The problem the democrats started rejecting justices nominated by republican presidents not on judicial qualifications but based on presumed political stand.
    The only reform that would make any difference would be if the politicians would return to approving or disapproving candidates based upon their judicial qualifications.

    1. Good to know your opinion.

      Better to know your opinion will be worthless in a week or so.

      Open wider, clingers.

  18. Bi-partisan meaning an equal number of communists, socialists, progressives, and never-trumpers?

  19. I think a likely outcome of the commission is that they will expand the appeals courts. This will seem like a modest and thoughtful outcome.

  20. Honest question for Ilya:

    If Trump proposed the IDENTICAL thing…would that be a hopeful sign?

    Since we know you’ll say “no”, why do you assume it is now?

  21. Mr. Somin,
    You’re far too positive about Biden’s proposed “bipartisan” commission on court reform. It will never come anywhere close to being bipartisan. There is no way the Democrats will allow any Republicans on that commission who don’t already agree with what they want. Biden is as wishy-washy on his positions as any politician we’ve ever seen, but the Democrats further left wing (further left than Biden, and that’s already pretty far) will never allow Biden to appoint anyone opposed to court packing.

Please to post comments