President Joe Biden’s commission on expanding (or “packing”) the Supreme Court issued a set of draft documents Thursday that blamed Republicans for current polarization over the judiciary, due to their refusal to confirm Merrick Garland in 2016.
The “discussion materials,” released Thursday afternoon ahead of a day-long public hearing on Friday, include a potted history of congressional tinkering with the courts, and consider a variety of reforms, including term limits for the Court.
In a document on the “genesis of the reform debate,” the commission largely ignores Democrats’ efforts to politicize the confirmation process, from the battles over Robert Bork and Clarence Thomas, to Senate Majority Leader Harry Reid’s decision to eliminate the filibuster rule for lower-level judicial nominees so that Democrats could push nominees through.
The commission also ignores how decades of liberal judicial activism on social issues undermined the courts’ legitimacy among many Americans, and it neglects President Barack Obama’s public rebukes of the Supreme Court on multiple occasions, including during his State of the Union address in 2010, when the justices were prevented from responding.
In contrast, the commission takes at face value Democrats’ claims that the current composition of the Court undermines its legitimacy because it happens to have more Republican nominees and hence may rule conservatively on social issues. It summarizes the Republican response to these concerns as being simply a claim that elections have consequences, rather than noting the strong emphasis by Republican politicians on originalism and hewing to the text of the Constitution as written.
Nevertheless, the commission’s draft document does warn that expanding the Court “could further degrade the confirmation process.” Indeed, the fact that it has produced several voluminous draft documents, but no formal recommendations, could be a sign that the commission intends to help the Biden administration bury the issue, rather than helping Democrats take it forward, as they attempted to do by proposing legislation expanding the Court as soon as the commission was announced.
Read the commission’s full set of draft discussion materials here.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.