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The enduring power of Donald Trump’s “drain the swamp” mantra is the visceral appeal it has to the vast majority of Americans who see the government as a hodge-podge of competing elite interests that either actively sell out the average person or throw those interests into a bureaucratic hole of persistent inaction. That Trump’s administration embraced these forces with a ferocity unlike any other doesn’t diminish the fact that it’s a solid tagline.
Joe Biden, on the other hand, comes from a brand of Democratic Party politics that affirmatively believes that the Washington model is a good thing. Where most people see detached elites, he sees “experts.” Where most people see industry lobbyists, he sees a neo-Madisonian reflection of the will of the public. And where most people see inaction, he sees “collaboration!” A commitment to institutionally vetted expertise and bland bureaucracy is, perhaps, a welcome change from hyperactive conspiracy mongering, but it doesn’t exactly scratch the itch that’s brought America to this crossroads.
Unfortunately, with the Republicans lighting their own norms aflame to ram an underqualified ideologue onto the bench and liberals demanding a commitment to undo this through expanding the size of the Supreme Court, Biden has been touched by the more mundane angels of his nature:
“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.
You know what we don’t actually need? A commission.
Of all the hackneyed, corporate nonsense out there, the “referral to committee” is among the most derided. It’s so universally and durably hated they made fun of it in a Star Wars movie and that was a long time ago. I mean 1980… not the setting of the film.
There’s a lot of ink spilled on this question already… go make a decision about it! Biden got a lot of flack for not immediately committing to court expansion one way or the other, but his eventual articulation of “well, it depends on what Mitch does with this nomination” was actually pretty good. It established that Biden prefers to keep the current rules but if he has to make changes that’s on Trump and McConnell. There’s a clearly delineated threat: accept a 5-4 conservative majority or be handed a 7-6 liberal majority. And now that’s all getting thrown out in favor of a promise to follow a “commission.”
People don’t like commissions. They convey the opposite of conviction. Despite what politicians may think, they tell the country just how little you prioritize an issue by signaling that it’s not important enough for you to have bothered to worry about before. With COVID as a backdrop, Democrats want to sell that they listen to expertise, but you don’t need an artificially bipartisan commission for that, you just need to read a Laurence Tribe book and say, “This guy convinced me.”
It’s just such bad politics. To the extent the country has undecided voters anymore they care more about the fact that a candidate has a stand than what that stand is. Because if someone is undecided at this point, they pretty clearly don’t pay attention to policy particulars. If America votes for Joe Biden they don’t want to hear what Leonard Leo thinks about court reform, they’re saying they want to hear what Joe Biden thinks about court reform, so just go ahead and do that and dispense with the fantastical bipartisan charade.
Because people don’t actually like bipartisanship as much as Democrats like to think. Republicans hate it. Democrats hate it. Everyone else doesn’t really care. You want a bipartisan discussion of court reform? Put a bill on the floor and vote on it! Anything else is the sort of empty academic masturbation that only interests Jeffrey Toobin figuratively and literally.
“There’s a number of alternatives that are — go well beyond packing … 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.”
Maybe the crux of the problem is that last sentence.
I’ve been outspoken in preferring a term limits option for court reform. The tit-for-tat nature of responding to de facto court packing with de jure court packing just locks us in the Treehouse of Horror scenario of constant retaliatory expansion until we make “a board with a nail so big it will destroy them all!” Something that sets a new, durable standard that returns the Court to its proper role as a lagging reflection of national elections. It’s also in the best interest of basic democracy to put an end to the idea that the country’s future turns on a life-tenured aristocracy. Court expansion still has a role to play in convincing the Court that its institutional credibility hinges upon accepting reform or becoming an expanded farce, but it’s the backup strategy, not the front line response.
Maybe someone on the commission can forward it before it gets buried under a sea of empty hypothetical alternatives and we’re right back where we started.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.