The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The first rule of Court packing is you do not talk about Court packing.
The second rule of Court packing is you do not talk about Court packing.
The third rule of Court packing is you only talk about Court packing after the election.
The fourth rule of Court packing is accuse the Republicans of Court packing.
The fifth rule of Court packing depends how Republicans handle it.
The sixth rule of Court packing is appoint a commission to recommend court packing.
The seventh rule of Court packing is to rule out term limits for Supreme Court Justices.
WATCH: "It's a lifetime appointment. I'm not going to attempt to change that at all."
— PBS NewsHour (@NewsHour) October 26, 2020
Today Vice President was asked if he would be open to a recommendation from the Garland Commission for term limits. Biden emphatically rejected that position, but then insisted that he had not yet made a judgment.
"No. No. No. No. There is a question about whether or not–It's a lifetime appointment. I'm not going to attempt to change that at all. There's some literature among constitutional scholars about the possibility of going from one court to another court, not just always staying the whole time on the Supreme Court. But I have made no judgment, my word. My word is I have made no judgment. There is just a group of serious constitutional scholars who have a number of ideas how we should proceed from this point on. That's what we are going to be doing. We are going give them 180 days, G-d willing if I am elected, from the time I am sworn in, to be able to make such a recommendation."
First, I think Biden was about to say there is a question whether term limits could be imposed by statute. But he stopped himself. I agree. Among the various proposals, adding term limits by statute is subject to the strongest constitutional challenge.
Second, Biden is sending the marching order pretty clearly. He doesn't want term limits. The benefits of term limits would only pay dividends in 18 years. No politician would ever rely on such a long time horizon. He wants the ability to rotate Supreme Court Justice to the lower courts and promote certain Circuit Justices to the Supreme Court. And of course, Biden will pick progressive jurists for that role.
Third, Biden seems to suggest this group of scholars has already been selected. Who are they? Identify yourselves! How many of the people who criticized my Garland commission post are already on the short list of the Garland commission?
Fourth, the conclusion is foregone. The members of the commission will just be going through the motions. Once, I was a member of an organization that asked me to sit on a committee to make a recommendation. It turned out that my recommendation would serve no purpose. The leadership had already made its decision. My work would be meaningless. At that point, I refused to participate in the meaningless process. And my abstention deprived the committee of a quorum. As a result, the committee could not make any recommendation, and the entire process was held up. I was able to hold out, and persuade the full organization to modify the rules of proceeding. Now, it was clear that the leadership, and not the committee, was actually making the recommendation. In that fashion, accountability was clearly laid at the feet of leadership. Ultimately, I agreed with leadership's decision, and was proud that the process was meaningful.