This is a transparent dodge. Joe Biden spent 36 years in the U.S. Senate, and eight as the vice president, and this is his third presidential campaign. He was the top Democrat on the Senate Judiciary Committee for 16 years, chairing it for six. He has given speeches about the dangers of Court-packing. Unless Biden’s mental state has declined worse than we think, there is not a chance in the world that he requires a commission to tell him what to think on this issue. The reality is that Biden is terrified of his radical base, and lacks the guts to take a stand in public. That bodes poorly for his presidency across the board.
What does this mean for Court-packing? Clearly, one reason Biden has not wanted to commit himself on the issue until after the election is the risk that he might win the election but face a Republican majority still controlling the Senate, which might take a more hostile approach to his judicial nominations if he came out in favor of packing the Court. As Ramesh Ponnuru notes, delaying the issue for six months would also make it harder to get Court-packing through the Senate for two reasons: Because it will be further into Biden’s term and closer to the Senate midterms, and because the Supreme Court will have finished its first term with Amy Coney Barrett on the bench by then, and it is highly likely by that point that alarmist Democratic predictions of the Court striking down Obamacare will have been proven false. I would add a third: A proposal this radical is more likely to trigger a major backlash if the candidate did not campaign on it. That is what happened to Franklin D. Roosevelt in 1937, having declined to address agitation from his party’s progressives to run on Court-packing in 1936. Michael Brendan Dougherty is optimistic that this signals a retreat, given that bipartisan commissions rarely result in the proposal of radical solutions that then get enacted into law. After all, it was a Democrat-controlled Senate Judiciary Committee that issued the report in 1937 that branded FDR’s Court-packing plan as a threat so grave that it should “never again be presented to the free representatives of the free people of America.”
