Joe Biden is the “return to normalcy” candidate. At least, that’s what his supporters consistently claim. He is the antidote to Donald Trump’s excesses and our ticket back to a time when the occupant of the Oval Office evinced what Barack Obama recently called “normal presidential behavior.” Biden’s proponents talk about the status quo ante as though it was a synonym for “good,” but politics as usual was not without its own irritating aspects. And as irritations go, the journey on which the Democratic presidential nominee has taken the country amid his tortured efforts to avoid taking a position on court-packing is especially grating.
From the moment he felt compelled to weigh in on this erstwhile fringe fixation of progressive bloggers, Biden has displayed nothing but contempt for his audiences. After the death of Ruth Bader Ginsburg, what was once a radical idea found its way into the mouths of Democratic senators, forcing Biden’s hand. Initially, Biden seemed to think that he could sidestep the issue entirely by castigating reporters who asked about his Democratic colleagues’ comments, insisting, “You’ll know my position on court-packing the day after the election.”
The combination of derision and arrogance on display failed to satisfy inquiring minds. So, Biden took another shot at it: “The only court-packing going on right now is going on with Republicans packing the Court now,” the former vice president said. “It’s not constitutional what they’re doing.” Perhaps because both these assertions are outright falsehoods, this, too, didn’t put the issue to rest.
So, on Thursday, Biden took one more swing at it:
“If elected, what I will do is I’ll put together a national commission of, a bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative,” Biden said. “And I will ask them to, over 180 days, to come back to me with recommendations as to how to reform the court system, because it’s getting out of whack, the way in which it’s being handled.”
When pressed by CBS News anchor Norah O’Donnell to be clear about whether this commission would recommend expanding the number of justices on the Supreme Court bench, Biden clarified that his commission would study “alternatives that go well beyond packing.” O’Donnell was taken aback. “This is a live ball,” she exclaimed. No, it’s not.
Insofar as Joe Biden as president would have anything to do with how Congress navigates the matter, court-packing is now a dead letter. What’s more, anyone with even a passing fluency in Washington-ese knows it. But being a good soldier for either candidate in this race requires you to pretend that you don’t.
The “blue-ribbon commission” has become a byword for avoidance, and for good reason. These are the venues in which controversial remedies for thorny political disputes go to die. As the Associated Press has chronicled, George W. Bush established just such a commission to study “modernizing” Social Security, which produced a set of recommendations that went nowhere. Donald Trump created a commission devoted to uncovering illegal voting that he insists occurred in 2016 to the same effect. Perhaps the most memorable commission, the Obama-era “Bowles-Simpson Commission,” which was dedicated to producing debt-reduction policies, succeeded only in convincing Congress to codify some consequences if the commission’s recommendations were ignored. It was an idea designed to be so heedless and unpalatable that neither party would allow it to come into effect. But those consequences, deemed “sequester,” did take effect in 2013 and survived intact for four years.
We don’t know what a Biden-era commission on court reform would produce, but we can be sure that a truly bipartisan group would offer a series of recommendations that would gore everyone’s ox. And if past is prologue, political actors in Washington would rend garments over their respective dead oxen, ensuring that few recommendations (beyond even any entirely unrealistic suggestions that involve amending the Constitution) would be implemented. And no one in elected office would have their fingerprints on that failure, which is of course the “blue-ribbon commission’s” primary value proposition.
Thus, Biden’s court-packing commission plan is a polite way of saying this extraordinarily unpopular and imprudent progressive fixation is dead in the water. Not that anyone is at liberty to act that way. Biden’s allies must pretend as though this offering of false hope to the progressive left is viable. Biden’s opponents must act as if court-packing isn’t the empty threat it always was but a promise if Trump loses. And Biden himself must continue to be cagey lest he give away the game.
But it is a game, and a tiresome one—in part, because almost everyone playing it knows they’re engaged in theatrics. After nearly four years of President Donald Trump, we’ve become used to a president who says precisely what he thinks on almost every issue, regardless of the political consequences of his honesty. That is a diversion from the mean. If we’re about to “return to normalcy,” engaging in Talmudic exegesis to divine plain meaning from deliberately vague or misleading presidential pronouncements is part of the deal. Maybe that vaunted status quo ante wasn’t as rosy as we remember it.