Biden Raises Idea of Rotating Justices on Supreme Court

Biden Raises Idea of Rotating Justices on Supreme Court
Democratic presidential candidate Joe Biden holds up his face mask as he speaks to members of the media outside a voter service center, in Chester, Pa., Oct. 26, 2020. (AP Photo/Andrew Harnik)
Mimi Nguyen Ly

Former Vice President and Democratic presidential nominee Joe Biden on Monday ruled out the idea of imposing term limits on U.S. Supreme Court justices but raised the possibility of rotating justices off the bench to other courts.

His comments came after he announced during a “60 Minutes” interview on Sunday night that if elected, he would form a “bipartisan commission” to study the federal court system and put forward recommendations for reform.

At a brief surprise campaign stop in Chester, Pennsylvania, Biden was asked, “You mentioned that as part of your commission, you would look at how long justices serve on the court, does that mean that you’re hoping for term limits?”

“No, no no no no,” Biden interjected. “There is a question about whether or not it’s a lifetime appointment. I’m not going to try to change that at all.”

But the presidential hopeful added, “There is some literature among constitutional scholars about the possibility of going from one court to another court, not just always staying the whole time in the Supreme Court.

“But I have made no judgement ... they’re just a group of serious constitutional scholars, who have a number of ideas how we should proceed from this point on. That’s what we’re going to be doing. We’re going to give them 180 days, God-willing, if I’m elected, from the time I’m sworn in, to be able to make such a recommendation.”

Biden did not elaborate further as to the possibility of rotating judges among the courts, nor was he further questioned on the matter at the event. The 77-year-old has been particularly evasive regarding his stance on packing the courts. On Sunday with “60 Minutes,” he didn’t explicitly say whether he was against or in favor of packing the court.

Democratic socialist Sen. Bernie Sanders (I-Vt.) in June last year had also suggested reforming the Supreme Court by rotating justices with those from the lower courts when discussing how to prevent the independent judicial branch of government from making changes to current abortion-related laws.

Sanders at the time appeared to be referring to a “lottery court” proposal published by progressive constitutional scholars, whose ideas have since been critiqued by other scholars for their potential to undermine the “finality and stability of the law,” among other considerations.

Biden previously said on Oct. 16 at an ABC town hall that he would make his position clear on court packing before Election Day, depending on how Barrett’s Supreme Court confirmation is handled.

The Senate late Monday voted 52-48 for the confirmation of Judge Amy Coney Barrett to the Supreme Court. The vote was largely along party lines, with no Democrat voting for the confirmation. Barrett was subsequently sworn in later Monday by Justice Clarence Thomas.

Pack the Courts

Democrats have since September threatened to pack the courts if President Donald Trump were to fill the vacancy left by the late Justice Ruth Bader Ginsburg ahead of the November election.
If they regain control of the Senate and White House in the upcoming election, Democratic lawmakers have said they will launch a court-packing effort aimed at what they argue would be balancing the ideological makeup of a bench that, by design, is to be independent of the legislative branch.

In the closing days leading up to the election, Biden plans to visit Georgia, a state that hasn’t voted for a Democratic presidential candidate since 1992, and Iowa, which Trump carried by more than 9 percentage points in 2016. He’s dispatching his running mate, Kamala Harris, later this week to Texas, which hasn’t backed a Democrat for the White House since Jimmy Carter in 1976.

Jack Phillips, Melanie Sun, and The Associated Press contributed to this report.