"Court Packing" is on the Biden Administration's Agenda -- But Maybe Not in the Way Imagined

AP Photo/J. Scott Applewhite

According to Politico, events are unfolding behind the scenes in the Biden Administration that will result in Joe Biden fulfilling one of his campaign promise — the creation of a “commission” to “study” the current status of the Supreme Court and the Judiciary and to make recommendations on possible changes or improvements.

This issue arose during the campaign following the death of Justice Ruth Bader Ginsburg, and the nomination by Pres. Trump of Amy Coney Barrett to take her place on the Supreme Court.  The Senate went forward with the confirmation process rather than await the outcome of the election.  Democrat activists howled in outrage and began to demand that the Biden campaign pledge to support expanding the Supreme Court to add more Justices if the Democrats took control of both houses of Congress.

Which they did.

But during the campaign the only commitment the Biden campaign would make — knowing that a promise to pack the Court would only further fan the flames on the issue on both sides — was that he would form a commission to study all aspects of the Judicial Branch, and receive any recommendations made by such a Commission.

The demand of the leftists is plain and simple.  With a current 6-3 split on the court in terms of the party whose President appointed the sitting Justices — with Pres. Trump having appointed three of the six — the left-wing wants the Biden Administration to add four new seats to the Court, all to be appointed by Biden, creating a new 7-6 split in favor of Democrat Presidents.

But this is all a farce.

Joe Manchin is already on record stating that he will not agree to “pack the Court” by adding to the number of Justices and then confirming Biden nominees to each of the new seats on the Court. Manchin would be ending his political career as West Virginia voters would certainly turn him out of office over such a vote.

Further, several other Democrats in “purple” states — and a couple in “red” states — would be unelectable next time around if the Court was expanded on a straight party-line vote.

To me, this is a non-starter, and every Democrat in the Senate — starting with Chuck Schumer — knows that.

But that doesn’t mean it’s a useless ploy — in fact, it is just the opposite.

The Supreme Court agrees to hear about 100 cases from among thousands of petitions filed with the Court each year.  Of those cases the Supreme Court does decide, not even close to half involve legal questions that are meaningful to a wide segment of the population.  Many are issues of regulatory matters involving particular industries that are meaningful to the people in those industries, but meaningless to the broader population.

While the Supreme Court does decide a handful of cases every year that is widely anticipated and covered in the media, the 12 Circuit Courts of Appeal decide cases every day — thousands of cases a year — which have a far greater impact on the lives of Americans because in almost every instance the decision of the Court of Appeal becomes the final word on the subject.

Harry Reid changed the rules of the Senate and eliminated the filibuster for judicial nominees during the Obama Administration.

But when the Republicans won control of the Senate in 2014, Mitch McConnel made a calculated decision to slow — and practically halt — confirmation of Obama Administration nominees to the Circuit Courts of Appeal.  As a result, when Pres. Trump won the election in 2016, there were dozens of vacant seats in the 12 Circuits, and because of the rule change by Harry Reid, McConnell was able to push through confirmations of Trump nominees to those seats by straight majority vote.

The proof is in the numbers.

There are 179 authorized full-time judgeships in all the federal Circuit Courts combined.  In his single four-year term, Pres. Trump was able to have 56 appeals court judges confirmed because the Senate was controlled by the GOP all four years.

By comparison, in two terms — 8 years — Pres. Obama was able to get only 50 nominees confirmed.

Currently, there are 96 appeals court judges who were appointed by GOP Presidents and 80 appeals court judges who were appointed by Democrat Presidents.

Joe Biden assumed office with only 2 vacancies.  A third vacancy was created by Merrick Garland’s resignation from the DC Circuit to become Attorney General.

The number of appeals court judges is set by statute.  The number has been unchanged since 1992 — which just happened to be the year Bill Clinton was elected after 12 straight years of having a GOP President in the White House, and 20 out of 24 years.  The number at the time was increased by 11 — from 168 to 179.

My prediction is that the Democrat-controlled Congress will not pass an expansion of the Supreme Court, as that is a radioactive issue that would likely cost some Democrat Senators their seats in their next election.

It would likely cause much less political controversy — although it should — if the Congress were to instead create two dozen or more new appellate court judgeships, and assign them to the courts in such a manner as to once again create numerical superiority of Democrat-appointed judges over GOP appointed judges in as many circuits as possible.

This will give Joe Biden as many as 40 appointments in his first two years — which may be a matter of some urgency because of the significant likelihood that the GOP could retake control of the Senate in 2022.  The balance of the Biden appointments would come from some of the remaining Clinton appointees finally opting to take “senior status” and have Biden nominees take their place.

This is “court-packing” no different than the threatened court-packing involving the Supreme Court.  But it’s much more likely to happen because it’s something that Chuck Schumer can probably get all 50 Democrat Senators to agree to.

It is also much more likely to have a lasting impact on the federal judiciary’s decision-making.