I can sum up the Democrats’ decades of failure to control the Supreme Court in a single concept: Republicans use the nation’s highest court to reward their die-hard electoral base; Democrats use it to pacify their moderates. The Establishment Democrats’ staunch refusal to offer more than a symbolic court defense of their constituents is why Democrats always wage – and always lose – an asymmetrical war for the third branch of government.
The Democratic Party’s most recent failure is Joe Biden’s Presidential Commission at the Supreme Court. Last week, in fulfillment of his election promise, Biden announced the formation of a 180-day commission to investigate the expansion of the court. Biden’s decisions confirm the worst fears court reformers had of the president: he doesn’t want a solution; he wants an excuse for not doing anything.
Democrats have the factual, moral, and political authority to expand and rebalance the Supreme Court. In fact, the number of judges has changed several times in the past and this is the clearest constitutional path for judicial reform. Morally speaking, Republicans have lost the right to some time between stealing a seat on the Supreme Court of Barack Obama during an election year and the rush to replace Ruth Bader Ginsburg (may her memory be a blessing) after an election had already begun, To object. And politically, these Republican manipulations have finally made Democratic voters aware of the importance of translating electoral victories into control of the unelected branch of government. There has simply not been a more ripe moment for judicial reform since the end of the Civil War – this happened to be the last time we changed the number of judges in the court.
The problem is, Biden was never a leader on this issue. Indeed, this commission arose out of the President’s refusal to take a position on judicial reform during the election campaign. He was assigned to kick the court expansion box down the street, and now that we have reached that part of the street he’s packing another boat.
Rather than form a commission of high-minded reformers or politicians, Biden created the fundamental government committee, which is deliberately designed not to get anywhere. The “Commission at the Supreme Court” is not even allowed to do it Guidelines recommendations what to do with the Supreme Court. It’s just meant to “study” the subject, which is like hiring a cook to draw pictures of food instead of cooking a meal. When Republicans take power, they don’t commission a book report on what to do with the courts. You are coming to Washington to reshape the judiciary from day one. Biden agreed to read an article about the law review.
Make no mistake, Biden has selected people of the highest intellectual caliber to do the homework he could have done during the transition. The “liberals” on the 36-person commission are perfectly recognized, respected and known in legal circles. The committee includes Sherrilyn Ifill, director of the NAACP Legal Defense Fund; Caroline Fredrickson, former president of the American Constitutional Society; and Lawrence Tribe, who is probably the most famous constitutional law professor in the country.