Joe Biden’s plan to study changes to the judiciary might get him through the debate or the election, but just about no one seems thrilled with it
The former vice president’s proposal to create a 180-day commission falls far short of the left’s dreams of adding seats to the Supreme Court. And Republicans continued alleging that Biden will pack the court and is just being disingenuous about his real intentions.
Brian Fallon, a former Senate Democratic leadership aide who now runs the progressive group Demand Justice, called it a “punt” and concluded that it “runs the risk of stalling momentum for serious reform.”
Progressive senators were less harsh — but they weren’t overly enthusiastic, with many Senate Democrats saying they weren’t entirely consulted about Biden’s plan and that they needed to win the election first.
“I’m supportive of the point that the court’s been deeply damaged, and … we have to all wrestle with how to fix it,” said Sen. Jeff Merkley (D-Ore.), who spoke for more than 15 hours on the floor against Supreme Court Justice Neil Gorsuch. “I’m not endorsing any specific proposal or idea.”
“I’m glad the vice president has decided to have a commission to discuss it. I’ve been clear about my position,” said Sen. Ed Markey (D-Mass.), who supports adding seats to the high court.
Biden has faced criticism for declining to offer a clear response to progressives’ calls for action after Senate Republicans blocked President Barack Obama’s Supreme Court nominee Merrick Garland in 2016 and now are moving swiftly to confirm Amy Coney Barrett barely a week before the 2020 election.
Biden is almost certain to be asked about his stance at his final debate with President Donald Trump on Thursday, and now he can offer his idea for the bipartisan commission.
But Senate Democratic leaders were no warmer to Biden’s plan than the rank and file. Senate Minority Leader Chuck Schumer repeated his vague threat that “everything is on the table if we get the majority.”
“First job: get the majority,” he told reporters with a fist pump.
Senate Minority Whip Dick Durbin (D-Ill.) said Thursday morning that he didn’t know “anything about it.” Informed of the parameters, he said: “There’s no reason to oppose it.”
“I’m sure that there are those that say, ‘We don’t need a commission, we know what to do.’ He’s a thoughtful person, he’s served as the chairman of the Senate Judiciary Committee,” Durbin said of Biden. “He’s trying to find a reasonable way to get people to talk to [one] another.”
But bipartisan participation seems unlikely, at least when it comes to the Republicans who actually will vote on Biden’s judicial nominees if he becomes president. Sen. Mazie Hirono (D-Hawaii) said that the commission can be bipartisan only if it has “reasonable Republicans, but I haven’t been able to find too many of those.”
Moreover, Republicans said Biden’s proposal is just a delay tactic to get him through Nov. 3 unscathed. Senate Judiciary Chair Lindsey Graham (R-S.C.) called it “gibberish.”
“I don’t know why he wouldn’t just have the guts to say he wants to pack the court, because I think his base clearly wants to pack the court,” said Sen. Josh Hawley (R-Mo.). “It’s totally disingenuous.”
Biden’s statement to “60 Minutes” about a bipartisan commission came after he’d boxed himself into taking a position at a town hall last week; he had previously declined to detail his plans, as Republicans hammered Democrats for being evasive on court-packing. Democrats say the GOP outrage is insincere given that they are in the process of jamming through a Supreme Court nominee days before the election.
But at least one Democrat said Republicans don’t have much to worry about.
Sure, Biden might push ethics reforms on the courts or entertain other ideas like term limits or cycling out judges into different courts, but, Sen. Joe Manchin (D-W.Va.) said, Biden’s commission is essentially an admission that he won’t just bluntly add additional seats to the high court.
“I don’t take that as any intention of changing the nine members,” Manchin said. “Joe Biden has said it’s going to be a tit for tat … he doesn’t agree to that, at least from what I’ve seen.”
And Biden won’t have the last word, either. Democrats in Congress are almost certain to have their own ideas.
“Any change to the federal court system will have to begin in Congress. So the commission can’t hurt, it could surface some good ideas,” said Sen. Chris Murphy (D-Conn.). “It’s certainly possible you’d have a process playing out in the administration and playing out in Congress.”
While Fallon of Demand Justice warned that a six-month study would severely hamper Democrats’ ability to act quickly on big reforms, most Democrats were more restrained, simply because Election Day is so close. In prime position to take back the Senate and White House and hold the House, the party sees infighting on the courts as totally unproductive at the moment.
“It’s a reasonable approach. [Democrats] want to see reform,” said Sen. Kirsten Gillibrand (D-N.Y.). “It’s not just about the number of justices, we have to have ethics reform … and we need to look at all the ways that Mitch McConnell has subverted justice.”
Marianne LeVine and Caitlin Oprysko contributed to this report.