Three thoughts in response to his CBS comments:
- Republicans will say this commission would be the first step toward Court-packing. Their political motive for saying that is clear: Court-packing is unpopular, and the prospect of it will probably get some people to vote Republican. It’s fair game, since Biden is continuing to dance around the subject.
- But Biden’s comments make Court-packing less likely. His plan delays any legislative action until after his honeymoon period (assuming there is one) is over. It also means that any action would happen after the Supreme Court has, in all likelihood, let Obamacare stay in place — draining more air out of the Court-packing trial balloon. And he is trying to broaden the conversation to proposals other than packing the Court. Putting forward several competing ideas, rather than one clear and simple one, is a recipe for bogging down the campaign to make structural changes to the Court — as Biden has to know. Finally, the comments are a clear signal that Biden is unenthusiastic about Court-packing, knows the public is, or both.
- Some of these other ideas face formidable obstacles of their own. Court-packing may be a deformation of the constitutional structure, but if so it’s a deformation that can be accomplished without amending the Constitution. Ideas such as creating a bipartisan selection committee to make Supreme Court nominations, on the other hand, would require an amendment and thus supermajority support from Americans. That’s even less likely to happen than Court-packing.