Biden commission on packing Supreme Court left liberals empty-handed. They won't accept it.
S E E D E D C O N T E N T
Internet progressives went into renewed outrage last week with objections to the "abomination" and "fixed" game being played in Washington. The subject of these attacks was not election fraud or infrastructure but the preliminary findings of the Biden Presidential Commission on the Supreme Court, which warned that "the risks of court expansion are considerable."
Despite being composed primarily of liberal members, the commission is now being attacked as a tool of the status quo. Ironically, much like the court itself, the commission is being declared invalid because it dared to reach conclusions different from these activists. Unlike on the court, activists apparently succeeded in getting two conservative members to resign because of the recommendations.
When the commission was formed, I wrote that it did not look like a serious effort to pack the court. Rather it looked like a standard "death by commission" move by President Joe Biden. The reason was not that it was too moderate but too liberal. If Biden seriously wanted to pack the court, this commission would hardly be credible with many Americans given the small number of members in the center or on the right. As the commission acknowledged, "A majority of the public does not support court expansion."
Cable news regular and Nation writer Elie Mystal declared on Twitter, "When you put no court reformers on your court reform commission, you end up with no court reform. This game was fixed from the moment @JoeBiden named the commission." He denounced the whole effort as "designed to produce no change."
In reality, the commission was divided, with some members supporting court packing and two of the few conservative members suddenly resigning Friday.
However, even if the backlash results in a purging of the report or the commission, Mystal could be partially right.
Biden: A 'terrible, terrible' idea
The "death by commission" tactic is a common substitute in Washington for actual political leadership. During the presidential campaign, Biden repeatedly refused to state whether he opposed packing the court. He said he would only answer the question after the election, a truly bizarre position that many in the news media then just shrugged off.
As a senator, Biden was eager to express his views when it was politically popular to oppose court packing. He denounced it as a "bonehead" and "terrible, terrible" idea. Now, however, those words would come at a cost. So Biden ordered up a commission to put space between his principles and his politics. To guarantee its placebic effect, the White House stressed that the commission would only make preliminary recommendations.
The strategy did not work in this case because Biden's acquiescence had fueled a well-funded movement of groups like Demand Justice (which has run a billboard truck in Washington calling for the immediate retirement of Justice Stephen Breyer). For months, progressives have made court packing the litmus test for whether someone truly supports democracy. Now to their outrage, the commission wrote court expansion "could undermine the very goal of some of its proponents of restoring the court's legitimacy. ... The reform - at least if it were done in the near term and all at once - would be perceived by many as a partisan maneuver."
If the White House hoped that the commission would serve as a type of primal scream session to release rage, it didn't work. That was evident in the response to the initial report. The "abomination" described by the Slate writer Mark Joseph Stern is that the commission suggested that "today's Supreme Court is basically apolitical while fretting that reforms with any real teeth would politicize it, and potentially break democracy."
In other words, this commission is itself in need for reform like the court itself. It was not stacked enough or simply ineffectual because it failed to reach the supposedly "right" conclusion.
Court is only 'broken' when it's 'wrong'
The commission did appear to vaguely support term limits for Supreme Court justices. While the limits would raise some constitutional questions, there is an argument that federal judges are only guaranteed lifetime tenure, not tenure on a particular court. However, the resulting turnover would toss out liberals and conservatives alike when groups are demanding the instant addition of four liberal justices to force a new majority on the court.
What the commission did not want to address is the fundamental flaw in the court reform movement. Most of the calls to expand the court have been based on the view that the court is "broken" because it is reaching the wrong conclusions. In other words, the court would not function correctly until it ruled "correctly." After all, when discussing the principle of judicial review, members like Rep. Alexandria Ocasio-Cortez, D-N.Y. asked, "How much does the current structure benefit us? And I don't think it does."
Biden's effort to use a commission to kill this "bonehead idea" was designed for a different time when you could let causes die from an abundance of time and talk. This is the age of rage. The commission was designed to placate radical demands for change, but it is now denounced as an "abomination" like the institution that it was tasked to study.
While the president is likely to promise to study the commission study, the calls for court packing are only likely to increase with this term as the court addresses major cases on abortion, free speech, gun rights and other issues. Biden cannot remain a pure pedestrian in this controversy.
It is not even clear that throwing the court under the bus would placate these activists. As French journalist Jacques Mallet du Pan famously observed about the French Revolution, "Like Saturn, the revolution devours its children." That counts for courts, commissions and even presidents.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's Board of Contributors. Follow him on Twitter: @JonathanTurley
You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to letters@usatoday.com.
This article originally appeared on USA TODAY: Biden commission on packing Supreme Court left liberals empty-handed. They won't accept it
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I'm going to reserve judgement on the "packing" issue of the SCOTUS until I see whether or not they reverse Roe v Wade by upholding the Texas "heartbeat" law. IMO all Americans who believe in a truly just court that is genuinely free of political leanings should resent the hypocritical jamming through of Barrett at the last instant of Trump's tenure overloading the court with conservatives.
And the court would be free of political leanings if the Republicans had allowed Biden to seat another liberal justice right? Please, the Democrats can't stand they got gamed by the damn system. They are just pissed they didn't do it to the Republicans first; and if they had the chance they damn well would have.
You think the left dragging every conservative Supreme Court nominee through the muck during the confirmation process isn't political? They are hoping to either get the nominee to withdraw; Bork them; or cast them in such a light that they are forever tarnished. That does nothing to keep keep the court apolitical. Just makes Supreme Court justices that are embittered- and maybe force them to be even more conservative in their rulings.
But they had the chance and didn't. They acted in good faith. It was the Republicans who did it.
Both sides do it - that's the dance - it takes two to tango.
From what I saw they kept their cool. If they can't stand the heat because it prejudices them then they're not qualified to be SCOTUS judges.
The Dems are just mad because the court isn't leaning left anymore, it was fine when they had the advantage though. RBG screwed them, she should have retired when Obama was in office. She knew her health was declining but she gambled that Hillary would win the presidency and lost but somehow her bad decision is the Right's fault. The problem isn't that there's to many right or left leaning judges, the problem is that it matters. How can the law mean different things to different judges, the only answer to that is corruption.
We need a constitutional amendment that would remove the nominating power from the president.
Supreme Court justices should be nominated by a bi-partisan panel made up of equal amounts of Democrats and Republicans, preferably made up of retired judges or law professors.
The preference should be for all Supreme Court justices to be moderates.
The way it is going now is going to lead to nothing but trouble. If Roe v Wade is overturned by a conservative court there will be mass turmoil in the streets.
We really don't. We need to elect better representatives in all branches and all levels of government.
And it will be the best election motivation for liberals in a generation.
That's why they're always saying Roe v Wade will be overturned by a conservative court, they're trying to panic the left. I think it's crap, Roe v Wade isn't going to be overturned. Sure some states might have more restrictions than others but that's about it.
I agree totally.
What do you imagine Democrats had a chance to do and didn't?
You didn't understand my comment? I thought it was pretty clear. Obama didn't pack the court at the end of his term. Or are you suggesting that McConnell prevented it,(and then the Republicans did the very thing with Barrett that McConnell had previously said was wrong.)
Obama nominated Garland but couldn't get him confirmed, so he tried and failed.
I believe he couldn't get him confirmed because McConnell stood in the way. The same McConnell who hypocritically argued that Barrett was a different situation. All in all, I believe Bob Dylan saw the Republicans for what they are and said so in his song "The Times They Are A-Changin'".
I really do hope that Next year those words will ring true.
You claimed the Democrats didn't do it when they had the chance. The democrats didn't control the Senate at the end of his term. How do you imagine he had the chance to do it?
Trump actually had the chance to pack the court and refused.
u suggesting that McConnell prevented it,
How could he prevent what was never proposed?
Do you know what packing the Court means?
Yep. Who controls the American Senate controls the government, except for Executive Orders, but I assume they cannot be used for anything really serious. Let's see if the American people wake up at the midterms.
Oh, and you say Trump didn't "pack" the court making it a 6 to 3 conservative majority in his last days in office?
"Packing" refers to adding to the number of Justices, especially for political purposes.
Then I stand corrected on that. All Trump did was fill the vacancy in a manner to make sure that there would be a conservative majority, rather than having a balanced court. Although Roberts is a conservative, I believe he puts justice and the law above politics - I can't say the same for the others.
An insurrection?
You can blame Ted Kennedy for all of this. It was he who made it about ideology rather than qualifications.
Of course he's not the most shining example of a good person anyway.
Trump did exactly what every one of his predecessors did--nominate people for SCOTUS.
Were there ever any times that a POTUS nominated someone who was not a member of the POTUS' own party? And if so, did the Senate approve the candidate?
I don't know, but would be willing to bet it happened at some point.
Probably not in the last 40 years or so, though.
Nah definitely not in the last 40 years. I Like Ike.....
No really? That is their whole goal. They even state so.
Democrats are so damn desperate to turn the US into China.
Well, if they did, then I'd feel safe visiting my grandchildren in Wisconsin knowing there's no possibility of my being shot and that there would be almost no possibility whatsoever of my being infected by the coronavirus since I'm not vaccinated and don't need to be. But don't worry, they won't, because Americans wouldn't be able to handle not being exceptional.
Imagine that. A liberal "commission" going against the party being attacked. I love it when these morons start eating their own.
Wonder when it would rule "wrong". /s
Couldn't be due to its findings differ from the mental midget mindset of the liberals could it?
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Care to relate how that post is even remotely close to having a single thing to do with the article or any of the posted comments??????