Biden Tasks Special Commission With ‘Studying’ Potential Expansion of Supreme Court

9 APRIL 2021/SF POLITICS/JAY BARMANN (SFist.com)

President Joseph Biden has put together a 36-member bipartisan commission, comprised mostly of academics, to “study” different potential changes to the Supreme Court including term limits and adding more justices.

Actually making changes to the court would likely cause Mitch McConnell to light himself on fire in the Senate chamber. But Biden is taking a politically necessary baby step to appease liberals who remain furious that an orange-faced charlatan who once had a TV show was able to pack the court with three conservative justices during his four years in office.

The commission is not being tasked with making a recommendation on expanding the court beyond its nine members, or imposing term limits, but it is being given six months to explore the possibilities and likely produce some kind of report. As a source close to the White House tells the New York Times, the commission “is intended to provide a forum to debate the issue that is protected from the passions that will continue to rage in the political arena.” And this translates to some likely disappointment when Biden inevitably decides not to wage all-out war on this issue — especially with an evenly divided Senate and a far from certain outcome even if Democrats tried to make any changes to the court.

Biden has said that the federal judicial nomination system has been “getting out of whack,” but he repeatedly avoided answering the question on the campaign trail of whether he supported expanding the court. The court has had nine members since after the Civil War, and the Constitution does not dictate how many members the court must have.

This new White House commission is being led by Bob Bauer, a former White House counsel under President Obama, and Cristina Rodriguez, a Yale Law School professor who worked as deputy assistant attorney general in the Office of Legal Counsel under Obama. As the Associated Press reports, the creation of the commission was something that Biden promised in an October TV interview, so he’s fulfilling that promise.

But this was, of course, the next phase in a war that’s been going for decades — and which escalated in 2016 with McConnell’s egregious power play in never allowing a hearing in Senate for Obama’s nomination of Merrick Garland, which came after the death of Justice Antonin Scalia and a full ten months before Obama left office. McConnell made an excuse about it being an election year and saying the new president should choose the nominee. But of course when another death happened in an election year, Ruth Bader Ginsburg’s, just weeks before the 2020 election, the Senate of course confirmed Trump’s third and ideologically worst nominee, Amy Coney Barrett.

Liberals and likely many centrists who saw this as dirty politics by conservatives desperate for a 6-3 majority on the court are itching for the next fight and a return to a more balanced court, if not a liberal majority — which has not existed on the court in decades.

But the justices are fond of casting themselves as apolitical figures, and denying the idea that they tend to rule in one direction or another — even though history has shown us that they do, and everyone who calls him or herself an “originalist” in the mold of Scalia is going to hate abortion rights, and hate voting rights, and more. Chief Justice John Roberts said repeatedly during Trump’s tenure that it was a mistake to justices’ rulings have political motivations — and he ruled against his conservative peers in several key cases last year seemingly almost to spite Trump and prove his point.

Justice Stephen Breyer earlier this week gave what sounded like a kind of goodbye speech to the Harvard Law School community — though he has not announced his retirement. As one of three members remaining in the court’s liberal bloc, Breyer may want to step down while a Democrat is in office — much as many thought Ginsburg should have. But he doesn’t want to be cast as liberal or conservative, and he issued a warning to Biden and Democrats in his speech that any attempt to expand the court would likely weaken it in the public’s mind, turning it into more of a political chess piece than it already is.

“I hope and expect that the court will retain its authority,” Justice Breyer said. “But that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

But activists will continue beating this drum, and the wound of Barrett’s confirmation is still fresh — let alone Kavanaugh’s.

“With five justices appointed by presidents who lost the popular vote, it’s crucial that we consider every option for wresting back political control of the Supreme Court,” says Nan Aron, president of the liberal advocacy group Alliance for Justice, in a statement to the AP. “President Biden’s commission demonstrates a strong commitment to studying this situation and taking action.”

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