The Deep Wisdom of Joe Biden’s Judicial Commission

Sheldon Clay
4 min readNov 1, 2020
Photo by Jesse Collins on Unsplash

After weeks of being pressed hard on the issue of packing the federal courts to compensate for Republican efforts to turn the judiciary into a functioning arm of their party, Joe Biden finally promised an answer before the election. So, in an interview on the CBS news program 60 Minutes he said he would…establish a commission of constitutional scholars to look into it.

This was obviously not the answer a lot of progressives were hoping for. And no one is ever thrilled by the idea of a politician promising a “blue ribbon commission” when asked to take a stand on an important issue. An editorial in my hometown newspaper described Biden’s answer as a passing of the buck with “the backbone of a buttered noodle.”

But in truth Biden’s answer was a good one.

Those pushing the former vice president to come down firmly on one side or the other of the issue believe there’s a pat answer to the long Republican project of politicizing the judiciary. They’re wrong.

It is true that the Republicans under Senate Majority Leader Mitch McConnell and President Trump have done immense damage to the integrity of the federal courts. Conservative judges are compounding the problem, in particular with a mishmash of late-breaking decisions that threaten to disenfranchise a huge number of voters in the 2020 election.

In my home state of Minnesota we just learned the Eighth U.S. Circuit Court of Appeals may decide after the election whether or not to throw away ballots that had been mailed in by voters who were just following the instructions provided by our Secretary of State. That alone, if it were to actually happen, might be reason enough to toss the whole system into the fire.

But we’re not quite there yet. Hopefully we never will be.

The reputation of the Supreme Court itself hangs by a thread. One more horrible decision like Shelby v. Holder — which effectively gutted the voting rights act — and we may see the citizenry marching up the steps of the Supreme Court with pitchforks and molten tar.

In the eyes of those who don’t share a right wing mindset, Trump’s first term has left us with one justice occupying a stolen seat, one frat boy/former political operative who’s words on voter…

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Sheldon Clay

Writer. Observer of mass culture, communications and creativity.