The GOP packed the court with right-wingers. Biden wants to know how to fix it.


President Joe Biden is keeping his campaign promise to create a commission to study judicial reform.

Keeping a campaign promise, and in reaction to Republican efforts to fill the judiciary with conservative ideologues and obstruct the confirmation of the judicial nominees of Democratic presidents, President Joe Biden has begun setting up a commission to study ways to reform the Supreme Court and federal court system.

Politico reported this week that the commission will be co-chaired by two former members of the Obama administration, former White House Counsel Bob Bauer and former Justice Department Deputy Assistant Attorney General Cristina Rodríguez.

The commission's staff will include former officials from both Democratic and Republican administrations and will aim to make recommendations in six months.

During the campaign, Biden was pressed by Republicans to say whether he would try to increase the number of seats on the Supreme Court, especially as Republicans rushed to replace the late Justice Ruth Bader Ginsburg just days before the election. In October, Biden told an interviewer that the commission would provide recommendations on reforming the court system because it "is getting out of whack."

After becoming majority leader following the 2014 midterm elections, Sen. Mitch McConnell (R-KY) refused to consider most of President Barack Obama's nominees to federal judicial positions. He bragged in December 2019 that he'd left many court vacancies for Donald Trump to fill after he took office in 2017.

Notably, he refused to allow the Senate to consider the nomination of Merrick Garland by Obama to the Supreme Court, claiming such a nomination should not be made during an election year.

After Trump won, McConnell changed Senate rules to allow his narrow Republican majority to quickly confirm judicial nominees and to lower the number of votes needed to end debate on Supreme Court nominees from 60 to just 51.

This allowed him to ram through hundreds of Trump's nominees to lifetime judicial appointments, including Supreme Court Justices Neil Gorsuch (who filled the seat to which Garland had been nominated), Brett Kavanaugh (who was confirmed despite multiple accusations of sexual predation), and Amy Coney Barrett (who was confirmed just a few weeks after Ginsburg's death and with the 2020 presidential election just a week away).

After packing much of the federal judiciary with conservative ideologues chosen by Trump, Republicans such as Tennessee Sen. Marsha Blackburn claimed during the 2020 election campaign that Biden and Democratic Senate candidates would "pack the court" by expanding the number of seats on the Supreme Court, should they win.

Many progressive organizations hope the commission will recommend just that.

Demand Justice, one such group, is running TV ads framing such a move as a way to "rebalance a Court that has become too partisan and too political."

"The American people said no and gave Democrats control of the White House and the Senate," the ad says. "Now we must reform the Court, restore basic balance, restore fairness, and restore our democracy once and for all.”

"Demand Justice supports reforming the Supreme Court by adding seats to restore balance, instituting term limits, and creating a binding code of ethics. We also support expanding the circuit and district courts to ensure speedy access to justice and improve diversity," Christopher Kang, the group's chief counsel and co-founder, said in an email. "We have long urged Democrats to rethink what kind of judges they appoint, and are thrilled to see President Biden putting an emphasis on appointing diverse legal aid lawyers, public defenders, and civil rights lawyers."

Nan Aron, founder and president of Alliance for Justice, said in an interview on Thursday that she hopes the commission will focus on articulating the need to expand the Supreme Court rather than on minor "technical reforms," given the "danger liberal values will confront at the hands of hard-right justices."

"This is a court that has embraced extremism across the board, and a report that recommends smaller goals won't address the critical problems posed by the Supreme Court to access to justice by everyday Americans," Aron said. Instead, she hopes that the commission will "reassert balance" on a Supreme Court that is "now in the power grip of hard-right, anti-democratic justices."

While the Leadership Conference on Civil and Human Rights has not made a specific endorsement of any proposals for how to fix the Supreme Court, the group believes "obviously something needs to be done," said Lena Zwarensteyn, senior director of the coalition's Fair Courts Campaign.

"It will be important to make sure the commission is committed to really, truly exploring all the options," she said, and to understanding that "it's vital to root out some of the ways the system was built to advantage the wealthy and special interests."

"Our institutions have been created to serve white supremacy and other special interests and have protected the wealthy and powerful," Zwarensteyn added. "It's vital that we see institutions, including the federal judiciary, as something we can and must fix."

In the 2020 election and the two Georgia Senate runoff elections held in January, GOP fearmongering about court-packing by Democrats failed to sway most voters.

Biden won, Democrats gained a narrow Senate majority with wins in both Georgia races, and Republican lawmakers are already having a conniption at the thought of reform.

On Thursday, Blackburn falsely accused Biden of springing the promised commission on the American people. Sens. Kevin Cramer of North Dakota, Marco Rubio of Florida, and 10 of their colleagues reintroduced a constitutional amendment first floated in 2019 that would forever cap the number of Supreme Court justices at nine.

Cramer said Thursday that keeping the number of justices at nine would preserve the "independence of the judiciary."

Published with permission of The American Independent Foundation.