And we all know what “reform” means in this context. Joe Biden has quietly launched a commission on “reforming” the Supreme Court, potentially dropping a partisan bomb onto Congress at the same time he’s pleading for “unity and healing.” Politico reports that it will supposedly be bipartisan, but there’s only party demanding changes to the top court’s structure:
The commission will be housed under the purview of the White House Counsel’s office and filled out with the behind-the-scenes help of the Biden campaign’s lawyer Bob Bauer. Its specific mandate is still being decided. But, in a signal that the commission is indeed moving ahead, some members have already been selected, according to multiple people familiar with the discussions.
Among those who will be on the commission are Cristina Rodríguez, a professor at Yale Law School and a former deputy assistant attorney general in the Obama Department of Justice, who has been tapped to co-chair the commission. Caroline Fredrickson, the former president of the American Constitution Society, and Jack Goldsmith, a Harvard Law School professor and a former deputy assistant attorney general in the Bush Department of Justice, will also serve on the commission, those familiar with discussions said.
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.”
Don’t get fooled by the name of the “American Constitution Society,” although it’s certainly not intended as a misdirection. ACS is a progressive activist organization, which will host Demand Justice’s Brian Fallon tomorrow on his push to expand the court. The “bipartisan” tag might not be a complete fake, however. At least one member identified thus far appears to be a vote in opposition to any changes:
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.
We’ll see how many such voices end up on this “reform” commission. Goldsmith might make for good political spin if and when the commission concludes that what the Supreme Court really needs is four more justices — all appointed by Joe Biden, natch. When Democrats rush to pass that bill, they can point to Goldsmith and claim, “Hey, these are bipartisan recommendations!”
It won’t matter anyway, because Republicans will fight tooth and nail to stop any such bill from passing. It might come down to a filibuster fight in which Joe Manchin might finally have to decide whether he’s going to represent West Virginia or Chuck Schumer. This kind of radical overreach will definitely get voters’ attention in the midterms, especially after being sold on Biden’s claims to reduce the chaos and partisan noise in Washington.
Of course, Biden might end up hoping to simply pander to progressives with a commission that delivers recommendations short of actual court-packing — requirements for consultation, lists compiled by the Senate Judiciary Committee, and so on. If that’s what he’s planning, however, this is going to enrage people on both sides of the aisle. Republicans will warn that Biden’s caving to the radicals, while progressives tear into Biden and Democratic leadership for raising expectations and failing to deliver.
This is a very strange move for an administration that keeps claiming to focus on “unity and healing.” It’s tough to figure out a move that threatens healing more than this opening gambit on court packing.