Former Vice President Joe Biden’s plan to set up a commission to study how to overhaul (and perhaps expand) federal courts is unlikely to make anyone happy.
But it could give the Democratic presidential nominee breathing room on the issue since he was sure to be asked about calls for Democrats to add seats the Supreme Court during Thursday night’s second and final presidential debate.
“If elected, what I will do is I’ll put together a national commission of, bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system, because it’s getting out of whack — the way in which it’s being handled — and it’s not about court packing," Biden said in an interview with the CBS News program "60 Minutes."
Beyond the question of whether to add seats to the Supreme Court past the current total of nine, there have been other proposals, including limiting the jurisdiction of federal courts through legislation. There are proposals to impose term limits on some or all of the justices.
Demand Justice, which is advocating for Democrats to boost the number of seats on the Supreme Court in response to the imminent confirmation of Judge Amy Coney Barrett to the ninth seat on the high court, expressed displeasure with Biden’s proposal.
“This proposed commission runs the risk of stalling momentum for serious reform. The window when Democrats may have the power to implement Court reform may be short, and the timeline for a commission would only constrict the window further,” Demand Justice executive director Brian Fallon said in a statement. “A commission that would allow opponents of structural reform to run out the clock is not a solution; it’s a punt.”
Senate Judiciary Chairman Lindsey Graham, R-S.C., who has overseen the Barrett confirmation process, including Thursday’s 12-0 vote to send the nomination to the floor, said the Biden quotes left him “more confused than ever about Biden’s intentions.
“One thing I can say, is that the real energy in the Democratic Party is to pack the court, is to expand it from nine to whatever number they need to make it liberal,” Graham said. “And as to my good friend, Sen. Feinstein, what happened to her by showing an act of human kindness tells you all you need to know about what awaits a senator who gets in the way of the agenda they have for our nation, beginning with it with the court.”
Graham was referring to the pressure from liberal groups for Democrats to remove the Judiciary Committee's ranking Democrat, Dianne Feinstein of California, from her perch, and to make sure she doesn’t become the chairwoman of the committee if Democrats reclaim the majority for 2021.
“The day we start changing the number [of justices] after every election to make it the way we would like politically, partisan-wise, is the end of the independence of the court. Lots at stake in this election,” added Graham, who is facing the race of his life in South Carolina.
Republicans have been introducing legislative proposals to lock the number of seats on the Supreme Court as nine. While the number of seats has not changed since 1869, the total number is set by statute rather than by the Constitution.
Sen. Ted Cruz, R-Texas, is among the lawmakers who want to amend the Constitution to solidify the nine-seat Supreme Court.
“Right now, they’re playing a game where all of [the Democrats], I believe, intend to pack the court if they win. But they don’t want to admit that, because that’s a very unpopular position with the American people,” Cruz said Tuesday on the Ben Shapiro Show. “It’s why Joe Biden and Kamala Harris are doing such gymnastics to avoid answering the question. And so I’m hopeful that between now and Election Day, that Senate leadership will tee this up for a vote and get every Senate Democrat on record.”
As for the Democrats, former South Bend, Ind., Mayor Pete Buttigieg, who himself ran for president and has become a key surrogate for Biden and Democratic vice presidential nominee Sen. Kamala Harris, D-Calif., had proposed a 15-member Supreme Court, with five justices “affiliated” with each major political party and five other jurists.
In the interview excerpt released Thursday by CBS, Biden said court packing and other changes were very much a “live ball.”
“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations,” Biden said in the interview.
Todd Ruger contributed to this report.