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Supreme Court Commission Finds Crisis In Senate Confirmation Process

October 15, 2021 by Dan McCue
The Supreme Court building. (Photo by Dan McCue)

WASHINGTON — A presidential panel charged with considering the pros and cons of altering the size and function of the U.S. Supreme Court is instead calling out the Senate confirmation process for justices.

In draft documents released ahead of a public meeting on Friday, the Presidential Commission on the U.S. Supreme Court says, “The highly polarized politics of the current era threatens to transform this already high-stakes process into one that is badly broken.”

The draft, which amounts to the panel’s first public findings, goes on to say the commission “did not attempt to identify the sources of polarization” or come to conclusions about any role the court itself may have played in it.

Nevertheless, the commissioners concluded this “acute polarization is likely to continue to affect the debate over the court’s role in the constitutional system, and to perpetuate partisan conflict over nominees to the court.”

Despite the dire tone of passages like these and others in the document, some believe the commission didn’t go far enough in its assessment of the situation or a prescription for its relief.

The American Constitution Society, the progressive legal think tank, went so far as to say the draft documents “unfortunately fail to match the urgency of the situation and do not lay out a solution to the legitimacy crisis before us.”

President Joe Biden created the commission by executive order in April saying it would examine the “current debate” over the court after three successive successful nominations by former President Donald Trump tilted the court in a rightward direction.

The draft documents posted on the White House website on Thursday afternoon — described as discussion materials — touch on five topic areas including expanding the size of the court, terms limits and how the justices do their work and explain their decisions.

The White House has said it expects a final report to be submitted to the president in mid-November. Even then, it is not expected to contain any specific recommendations for reforms.

The Size of the Court

When it comes to the membership and size of the Supreme Court, the commission concluded Congress has “broad power” to structure the court any way it wants. 

“The prudential question is more difficult, and commissioners are divided on whether court expansion would be wise,” the documents say.

On the one hand, the panel says expanding the number of justices could enhance the court’s reputation because it would allow the president to select individuals “who reflect the rich diversity of the nation.”

Having justices that reflect a wide range of characteristics and background, whether they be gender, race, ethnicity, sexual orientation, educational background or geographical origin could enrich the justices “discussion and decision making.”

“A larger Supreme Court might also be able to decide more cases and to spend more time on emergency petitions,” the documents said. “To the extent the public or lawmakers would like the court to resolve more cases, and a larger court would have a greater capacity to do so, court expansion could bolster the institution’s legitimacy and effectiveness.”

At the same time, however, the commission acknowledged the risks inherent in expanding the size of the court are “considerable” and “could undermine the very goal of some of its proponents of restoring the court’s legitimacy.” 

“Recent polls suggest that a majority of the public does not support court expansion. And as even some supporters of court expansion acknowledged during the commission’s public hearings, the reform—at least if it were done in the near term and all at once—would be perceived by many as a partisan maneuver.”

Further, the commission says, one administration’s expansion of the court “could lead to a continuous cycle of future expansions.” 

“If the country and the political system were to be embroiled in repeated fights over court expansion, that alone could harm the Supreme Court’s public reputation. The public might come to see the court as a ‘political football’—a pawn in a continuing partisan game,” the commission said.

Term Limits

If expanding the court is a no-go, the concept of limiting the justices to specific terms continues to enjoy the support of the general public and the commission.

“With a nine-member court, two likeliest options for term limits would be 12 years or 18 years. Term limits may help strike a more appropriate balance between judicial independence and ‘long-term responsiveness’ of the judiciary to our democratic system of representation,” the commission said.

But if term limits could still be said to be on the theoretical table, the panel was quick to say no one should see them as a panacea or take a decision to impose them lightly.

“The Supreme Court has functioned with life tenure since the founding. Switching to a system of term limits could have unintended consequences,” the draft documents say. “That fact should not be discounted; one should not make significant changes to complex institutions without careful thought. Inertia too can have unintended consequences.”

Cameras in the Courtroom

Though people and some media organizations have called for years for cameras to be installed in the majestic courtroom of the Supreme Court building, the commission seems to be in no mood to confront the justices’ long standing opposition to such an intrusion of technology.

Instead, it suggests the “continuation of near simultaneous audio would be a step forward and would better enable the media to cover the court’s work, while enabling interested members of the Bar and the public to better follow the work of the court. 

“Perhaps further experience with simultaneous audio will encourage the court to try cameras as well,” the panel added.

The justices returned to their courtroom earlier this month for the start of their 2021-2022 term, after 18 months away due to the coronavirus pandemic. However, the court has limited the number of press who can cover its proceedings live, offering streaming audio as an alternative.

It has also not allowed the general public to return to the building.

As for greater transparency in other respects, the commission again appeared to soft pedal in the face of long standing court tradition, saying only that the justices and the court itself “may benefit from continuing to adjust its explanatory practices in important cases.”

Criticism

The commission also suggests that the court adopt a formal code of conduct, an action that would bring it into line with lower federal courts “and demonstrate its dedication to an ethical culture, beyond existing statements that the justices voluntarily consult the code.”

In his full statement as president of the American Constitution Society, Russ Feingold suggested such proposals ring hollow.

“Our Supreme Court is facing a legitimacy crisis that is imperiling our democracy,” Feingold said.

“We are witnessing the intentional erosion of our most basic constitutional rights at the hands of a packed Court that is trampling judicial norms and precedent to advance a partisan agenda,” he continued. 

“We have said since the commission’s beginning that for the commission to provide a meaningful contribution to restoring the legitimacy of our judiciary, it needs to advance a specific list of Supreme Court reforms that can be acted upon in the near term,” Feingold said. “The discussion materials released today unfortunately fail to match the urgency of the situation and do not lay out a solution to the legitimacy crisis before us. 

“There are a variety of reforms that should be advanced, including changing the composition of the Court to remedy the Right’s packing of the Court, ending life tenure, and ensuring the Court cannot use the shadow docket as a … way to thwart civil rights and liberties. To be clear, the absence of such reform is almost certain to result in this Court continuing to strip away our constitutional rights and undermine our democratic legitimacy as a country,” he concluded.

Another group weighing in, angrily, on Friday morning, was Stand Up America, a 501 non-profit organization based in New York City, that typically comments on voter suppression and related issues.

“Biden’s commission is waffling in the muddy middle of nowhere,” said Brett Edkins, the organization’s managing director of policy and political affairs, in a written statement.

“The commission wrote 200 pages on legal history and competing proposals to improve the Supreme Court, but failed to make the one recommendation they actually needed to make: Expand the court,” he said. 

“Regardless of what the White House commission concludes in its final report to President Biden next month, Democrats must move swiftly to pass the Judiciary Act to add four seats to the court before it’s too late,” Edkins said. “In the next year, this radical Supreme Court could gut Roe v. Wade, eradicate common sense gun control measures, and further erode our fundamental freedom to vote. Restoring balance to our nation’s highest court is needed now.”

Dan can be reached at dan@thewellnews.com and at https://twitter.com/DanMcCue.

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