Joe Biden and the Return of the Dreaded Bipartisan Commission

Joe Biden finally has a court-packing answer—sort of. After dodging the question of what he would do about the Supreme Court, he told CBS’s Norah O’Donnell he would create a “bipartisan commission” to study and recommend possible reforms and report back to him in six months, should he be elected. “There are a number of things that our constitutional scholars have debated, and I’ve looked to see what recommendations that commission might make,” Biden said. “There are a number of alternatives that go well beyond court-packing.” 

It is, in substance, not that different from Biden’s previous nonanswers on the very same question. Pressed on whether he would push to expand the court, Biden has consistently responded with variations of “it depends.” First, Biden said it was dependent on what Senate Republicans did about the nomination of Amy Coney Barrett, which progressed from committee amid Democratic protests on Thursday. Now Biden is saying it depends on what his bipartisan commission recommends—even though its suggestions may not come until next summer, by which time conservatives on the court may well have begun a Reign of Terror. 

The timing of Biden’s new answer is certainly not coincidental. In the first debate, Trump hounded Biden on the issue of court-packing, and for the president’s backers, it was the silver lining of an otherwise atrocious performance. Biden’s blue ribbon commission was a way to take an arrow—possibly the only arrow—out of Trump’s quiver before the debate on Thursday night. It is, first and foremost, a short-term political strategy. 

However, the choice of the “blue ribbon” bipartisan commission (it’s unclear why such commissions are always given prizes as if they were farm animals), a depressing hallmark of the Obama era, is also telling. The constant pining for bipartisanship was perhaps the most damaging strategic error of Obama’s first term, exemplified by the long, lonely search for a Republican vote on the Affordable Care Act and an austerity-embracing bipartisan commission on “fiscal responsibility.” 

In a polarized, partisan age, the bipartisan commission is, theoretically, a way of overcoming a gridlocked Congress. Elected Republicans may not be willing to break ranks, but, in theory, GOP-aligned “experts” might—providing the pressure needed to actually get something done. In practice, however, they either achieved not much at all or led to nightmarish results. Simpson-Bowles, the commission on fiscal responsibility, was a disaster. Looking at the post-2008 economic wreckage, the commission proceeded from the incorrect presumption that the economic downturn was the result of the federal deficit and not the multitrillion-dollar collapse of the American housing market. It recommended deep cuts to entitlements and spending. “Under the guise of facing our fiscal problems, Mr. Bowles and Mr. Simpson are trying to smuggle in the same old, same old tax cuts for the rich and erosion of the social safety net,” wrote The New York Times’ Paul Krugman in 2010. 

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