From Bader to Better: Why Biden’s Response to GOP Court Packing Might Be Right.

The GOP has succeeded in unfairly packing the courts with conservative judges who are out-of-step with the American people. Joe Biden’s surprising counterpunch with a bipartisan commission might be just the right thing after all, despite criticism from the left.

To understand how it might make sense, it’s good to know how the Democrats got here and what’s at stake.

Senate Majority Leader Mitch McConnell has been packing the federal courts with conservative judges for years. By packing, I mean the use of abnormal judicial nomination procedures to gain an ideological advantage in the courts. This trampling of traditional norms is exemplified by McConnell’s refusal to confirm Merrick Garland because it was during a presidential election year, followed by Senate confirmation of Barrett to replace Ruth Bader Ginsburg just days before an election.

It has been going on under McConnell for a while though. Certainly, his slow-walking of nominees by Obama, and then massively moving Trump appointments at breakneck speed qualifies as court packing. The Senate slowdown contributed to 110 federal judge vacancies left at the end of the Obama administration. Case in point: the Senate only approved two appellate court justices in Obama’s final two years, but a historic 30 during Trump’s first two years.

Nonetheless, the Democrats did not have the votes to stop the Senate confirmation of Barrett. The Constitution allows the president to nominate a justice to the Supreme Court and the Senate to approve the nominee anytime, plain and simple. That is why the Senate Democrats have decided to define the stakes of the matter not as the confirmation vote in the Senate, but instead a referendum on the president who nominated her and the policies that are being put at risk by her selection.

This was the right ground upon which to fight. It became quite evident during the hearings that the Republican Party and its nominee for the Supreme Court were at odds with the American people in several important respects. Here are a few examples:

First, the Affordable Care Act — Trump has made it clear that he wants to repeal Obamacare in its entirety and there is an administration lawsuit pending before the Supreme Court to do this. Most Americans favor keeping the Affordable Care Act because of issues such as coverage for preexisting conditions. Furthermore, millions of workers have lost their workplace coverage because of the pandemic and are especially vulnerable now. Barrett would not commit to how she would vote on the ACA, but she has previously stated opposition to it and would join four other conservatives on the court who have previously voted to strike it down.

Second, Roe v. Wade — The religious right has made no secret of their litmus test of appointing justices to the court who will overturn or hollow out a woman’s reproductive rights. A steady stream of such cases has flowed to the Supreme Court because of challenges to overly restrictive state laws. Texas and Louisiana offer two recent cases in which the state law was blocked by a narrow 5–4 vote. Based on her record, Barrett could easily be the reliable fifth vote conservatives have been looking for, contrary to the majority view of Americans.

Third, climate change — The American people agree that climate change presents a major environmental threat to the country but also offers an economic bonanza if addressed properly. In response, the right-wing has been launching a massive legal assault on the government’s ability to control pollution by attacking such fundamental doctrines as the use of the commerce clause in the Constitution to regulate pollution, deference to government agencies when the law gives them discretion, and even the authority of the Environmental Protection Agency to set limits on carbon emissions. When Barrett at her hearing recited a pro-polluter talking point that there couldn’t be a scientific consensus on climate because there was political controversy, she indicated her inclination to join the conservative block on this issue.

Fourth, GOP court packing — The American people disagree with filling the vacancy at this time, preferring to let the winner of the presidential election make the decision. This seems to be especially true since the election is already underway with election-related lawsuits that could decide the winner heading to the court. All of this contradicts what the GOP said in 2016, and none of it looks proper.

Any of the first three policy issues listed above would represent a radical shift in social practice, sometimes relying on extreme interpretations of law that have never been mainstream legal thinking. And there are plenty of other issues hanging by a vote, including labor issues, marriage equality, and voting rights. No wonder the majority would prefer to wait.

Holmes & Moriarty at Reichenbach Falls (

Enter Joe Biden

It has been evident throughout this campaign that Biden is not a revolutionary. He wants to restore civility and democratic norms to the political process and make progress from there. It can be seen in his reluctance to go too far on issues ranging from completely scrapping private health insurance to abolishing the Senate filibuster. It also explains much of the support he has garnered from centrists.

And so it has been with the demands that Biden commit to putting additional justices to the Supreme Court. The idea of rebalancing the court through adding more judges for ideological reasons has been opposed even by many Democrats, in part for its impracticality. One side would add justices, then the other could, and so on until an unending downward descent of retaliation takes us over the edge of a political Reichenbach Falls.

The situation is as if Joe Biden has said the following:

“Let’s all take a step back from the brink. You should have let the people decide who gets to fill this vacancy like you said in 2016, or you should have approved Garland back then. Now the people need to vote you and your party out of power. If they do, we will have to find a way to reset the scoreboard. As president, I will get all the reform options put on the table, including adding justices to the court if necessary. And since you really don’t want me to do that, you should come to the table in good faith and negotiate a long-term solution that restores fairness and order to the process.”

This is an imminently reasonable position. Mind you it’s not mine. I’m an aggrieved progressive tired of conservative power-grabs on voter’s rights, money in politics, and labor organizing. But it is reasonable nonetheless to say let’s try to work out something together before engaging in an all-out shooting match. And it is a position that recognizes that we as a society increasingly have a general crisis of legitimacy that should we want to prevent as much as possible from spreading into the judicial branch.

It is challenging but not quixotic to think a bipartisan commission could help address a serious matter of governance. For example, since the 1940s Congress has created three bipartisan Joint Committees on the Organization of Congress to examine how the legislature could operate more effectively, resulting in changes to the committee system, the budget process, the calendar, staffing, and virtually all aspects of the legislative process. (This approach has already been suggested by the Congressional Institute as a way of addressing issues related to reform of the Senate filibuster.)

More reform proposals for the Supreme Court have been surfacing for a while beyond simply adding more justices (which would itself almost certainly require reforming the legislative filibuster). A diligent commission could come up with many more ideas, but here are some of the main categories for consideration:

(1) Set term limits on justices — The most common form this proposal takes is a term-limit of 18 years, after which the justices would rotate to a lower court position. The merit of this proposal is that it would lower the ideological stakes on appointments since they would not last for a lifetime. This is especially relevant since the median length of service on the Supreme Court has lengthened by more than a decade since the 1950s.

(2) Change the way that justices are selected for the Supreme Court — There is a great variety of proposals that fall into this category which a commission should sort out and evaluate. They include rotating justices from lower courts onto the Supreme Court and off again, creating a nonpartisan committee to submit rosters from which justices must be selected, or guaranteeing every president gets at least two seats to be filled on the court.

(3) Codify the “advice and consent” process in the rules of the Senate — Clarifying the conditions for Senate action could avoid over reliance on unwritten norms and head off bitter conflicts. Examples abound. If it is agreed that a nominee should not be considered in an election year or in the last three months of a president term, then that should be stated in the rules. If the president nominates a candidate for the court, they should be given an up-or-down vote within a certain amount of time. Languishing vacancies could be filled through temporary rotation from lower courts. These ideas and more would be intended to create more clear practices before the next conflict arises.

(4) Bring ethics rules and accountability to the court — The Supreme Court currently operates under much looser rules regarding ethics and conflict-of-interests than any other branch of government. Often the only check is self-regulation by the justice in question. Greater disclosure, restrictions on acceptance of gifts, and enforcement of a recusal policies could actually help protect the reputation of the court and the public’s faith in its decisions.

Many other ideas for judicial reform are circulating. But the debate over what to do about the Republican packing of the courts with conservatives and Joe Biden’s response to it makes one big idea clear. If you are a voter who would prefer thoughtful deliberation over conflict on some matter, then careful judicial reform might be for you. And since only one of major party candidates has put this on the national agenda instead of more of the same, then Joe Biden should be your guy.



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Wesley P. Warren

Wesley P. Warren

President of Win With Green Consulting, providing strategic advice on environmental politics