Thomas Gallatin / October 15, 2021

No Court Packing Says … Biden Commission

The SCOTUS Commission determined that expanding the Court would simply create more problems.

One of the Left’s biggest complaints over the last five years has been the makeup of the U.S. Supreme Court.

The hysterics began when the GOP-controlled Senate refused to consider Barack Obama’s nominee Merrick Garland to replace the late Antonin Scalia during the 2016 presidential election year. The issue only became more acute for Democrats with Donald Trump’s surprise victory and his subsequent nomination and Senate confirmation of Justice Neil Gorsuch. With Trump’s nomination of Brett Kavanaugh to replace the outgoing left-leaning justice Anthony Kennedy, Democrats became so apoplectic that they instigated one of the worst personal smear campaigns against a SCOTUS nominee in U.S. history, reminiscent of their despicable treatment of Justice Clarence Thomas three decades prior. Ironically, their treatment of Kavanaugh was so bad that they effectively hamstrung themselves when it came to offering any significant resistance to the confirmation of Amy Coney Barrett to replace Ruth Bader Ginsburg just months before the 2020 election.

As the Court took on a decidedly right-leaning makeup with a 6-3 conservative majority (assuming John Roberts can be called “conservative”), Joe Biden made addressing the SCOTUS “imbalance” part of his campaign, even flirting with the idea of court packing as a “solution” to this “problem.”

After the election, Biden followed through on his promise to address the Court “problem” and created a Presidential Commission to investigate the possibility of expanding the court. Yesterday, the Commission released its preliminary recommendations, with the final draft expected to be released in mid-November. And it turns out, as many conservatives contended regarding court packing, the Commission determined such action would not “solve” the problem.

“There are also reasons to doubt that Court expansion necessarily would produce benefits in terms of diversity of efficiency,” the Commission’s report said. “There is no guarantee that a larger Court would be drawn from a more diverse group of individuals. And a larger court may be less efficient than the current complement of justices.”

Furthermore, the Commission warned, “The risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court’s legitimacy. Recent polls suggest that a majority of the public does not support Court expansion. And as even some supporters of Court expansion acknowledged during the Commission’s public hearings, 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.”

However, in an attempt to not appear to have come up empty for Biden’s SCOTUS crusade, the Commission suggested the possibility of rotating justices. But even that came with a huge caveat, as the report noted that attempting to do so would meet a signifiant “obstacle,” namely Article III, Section 1 of the Constitution, which explicitly states that “the judicial Power of the United States, shall be vested in one supreme Court, and in such interior Courts as the Congress may from time to time ordain and establish.”

Finally, the most ridiculous aspect of this whole Commission charade was the contention by Democrats that it was Republicans who were guilty of politicizing the Court. The Commission’s report not only did not refute such a blatantly absurd claim, it essentially accepted the Democrats’ false framing of the Court being politicized by Republicans.

Which party was it that has been calling for packing the Court? Which party has for 30 years made a practice of personally destroying nominees of the other party? Which party nominates justices that rule according to political agendas instead of the Rule of Law? It’s clear that it’s not the GOP politicizing the judiciary.

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