Tag: court reform

What should we expect of Biden when it comes to the judiciary?

The new administration is borrowing from Trump’s playbook, not Obama’s.

Three weeks into the Biden administration, the new President’s approach to the judicial branch is coming into focus. It looks a lot like that of his immediate predecessor, with a heavy focus on appointing federal judges and advancing court-related policies that satisfy the ruling party’s ideological litmus test.

Biden entered the White House with only 46 vacancies on the federal bench, and several pending nominations remaining from Trump’s final weeks. But when the runoff elections in Georgia produced a 50-50 Senate and the ability of Vice President Harris to serve as a tiebreaker, the calculus on judicial appointments changed. The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees. More conspicuously, progressive activists and academics began urging older federal judges to take senior status, a designation which would keep them on the bench with a reduced caseload, but which (more importantly) would open additional vacancies at the district court and circuit court level.

Biden last week also rejected any formal role for the American Bar Association in pre-vetting federal judicial nominees, a stunning move for a Democratic President. The ABA’s process focuses on a nominee’s ideologically neutral qualifications, like experience and temperament. For generations, its ratings of nominees has served as an additional quality check — and since most nominees are deemed qualified or well-qualified, an additional stamp of approval that can help with Senate confirmation. When Donald Trump rejected the ABA’s vetting role in early 2017, I described the action as an “unforced error.” And indeed, it was — the ABA continued to vet the nominees even without the President’s blessing, and identified a handful of candidates who were plainly unqualified for the federal bench. Rejecting the ABA four years ago opened the door for criticism that Trump’s nominations were based more on ideology than skill and competence; rejecting it now will open the identical door for Biden. Continue reading “What should we expect of Biden when it comes to the judiciary?”

Another voice against court packing

With the Biden Administration announcing the formation of a committee to explore reforms to the Supreme Court—including the possibility of adding seats—Democratic political consultant Douglas Schoen offers several words of caution in The Hill for would-be court packers. The key grafs:

Even if Democrats can get rid of the filibuster, packing the Supreme Court on a party line vote would tarnish judicial credibility and would reduce the institution to a partisan tool. Moreover, it would trigger an endless cycle of revenge politics, as each successive party in control would be motivated to add justices to restructure ideological balance on the bench.

The backlash of packing the Supreme Court would be considerable for Democrats, as this move is unpopular with voters. After the confirmation of Barrett, a national survey had found that, by 47 percent to 34 percent, voters think Democrats should refrain from altering the Supreme Court. But most Democrats do want party leaders to add more justices.

So packing the Supreme Court would damage the chances for Biden of achieving his elusive goal of unifying both parties. This would send the message that he is instead interested in fueling the current climate of partisan politics, rather than trying to fix it. It would not only harm his legacy, but would also likely prevent him from being able to pass any meaningful or comprehensive bipartisan legislation in office.

Schoen focuses primarily on the political damage that would be wreaked by court-packing, but the institutional damage to the judiciary would be just as significant. It would dramatically undermine public confidence in the Court through no fault of its own.

Institutions are fragile things. They take generations to build and imbue with legitimacy and confidence, but far less time to destroy. With so many of our political, religious, cultural, and civic institutions already under attack, we should refrain now from opening another wholly unnecessary front.

IAALS seeks new CEO

The Institute for the Advancement of the American Legal System at the University of Denver (IAALS), one of the premier legal reform organizations in the United States, is seeking a new CEO. The full details can be found here.

As a proud alumnus of, and occasional ongoing contributor to, the IAALS family, I can confirm first-hand that this is a remarkable organization and a remarkable opportunity. It will take an equally remarkable person to take IAALS into the 2020s and beyond, but I encourage all qualified people to give it serious consideration.

The cravenness of Democratic “Court reform” proposals

The Supreme Court is doing its job and winning public support. Some Democrats are despondent.

Last week, The Hill published an op-ed by by Democratic pollster Mark Mellman, lamenting the Supreme Court’s recent decisions on abortion rights, immigration, and workplace discrimination. Each of these cases resulted in what might be termed a liberal victory, in the sense that the outcome was in line with prevailing left-wing views in the United States. One might think of this as a cause for celebration among the Democratic establishment. But not for Mellman, who with a tinge of sadness concluded that “by refusing to inflame passions further, [Chief] Justice Roberts may stem the tide and accomplish the coveted goal of his GOP critics — preserving the Court’s current conservative majority.”

A second op-ed, also published in The Hill (on the same day, in fact!) took a more academic tone but made essentially the same point as Mellman. Law professors Kent Greenfield and Adam Winkler argued that the Chief Justice’s “moves to the middle will likely assist conservatives in the long run by dooming plans by Democrats the pack the Supreme Court with justices.” 

Both articles expose the long game the Democrats have been playing with the Supreme Court since the failed Merrick Garland nomination in 2016. It is a game to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself. And it is a game that has been undermined by the Court’s own decency and independence.
Continue reading “The cravenness of Democratic “Court reform” proposals”

On reforming the Supreme Court

Russell Wheeler at the Brookings Institution has taken a detailed look at the various proposals to reform the composition of the U.S. Supreme Court, from court-packing to term limits. He provides a short history of each proposal (including potential legal stumbling blocks). Most importantly, he determines that at this time, the American public has no real taste for Supreme Court reform — the most significant stumbling block for any court proposal.

Wheeler concludes:

That reasonable people are even debating these proposals speaks to the degradation of the federal judicial appointment process at all levels, a decline that has been building steam for several decades. The once near-ministerial task of appointing and confirming federal judges has stretched from one or two months into sometimes year-long ordeals, even for non-controversial nominees.

Both parties have undermined the guard rails that that once pushed presidents and senators to seek judicial candidates within some broad mainstream of ideological boundaries, even allowing for occasional outliers. Democrats killed the filibuster for most nominees, and Republicans finished it off for Supreme Court candidates and, to boot, ended the home-state senator (of either party) veto of circuit nominees that Republican senators exploited relentlessly to block Obama administration appointees.

…

Pack-the-court proposals that would normally seem bizarre are understandable in today’s partisan climate. If the federal judiciary becomes a 21st century version of the 1930s judiciary that thwarted a popular push for change, they may even become necessary.

I don’t think we are anywhere near that level, despite the hysteria created by left-leaning partisans and academics. While Republican presidents have appointed more Justices, and while the justices serve longer, on average, than they ever did before, the leftward policy drift of many Republican appointees over time tends to keep the Court much more balanced than it might seem at the time of a Justice’s confirmation.

The battle over the Court is, in my mind, partially a spillover from the current partisan battles in the other branches and partially a reaction to the Republican Party’s successful focus on judicial appointments since the Reagan administration. When bipartisanship in Congress has eroded as badly as it has, it seems inevitable that both parties will seek to punish each other to the extent they can in the realm of judicial nominations. And the undeniable success of Republican administrations in populating the federal courts over the past forty years has left Democrats in a state of agitation, bordering on desperation.

I do not know if and when some sense of bipartisan responsibility and decorum will return to Congress. But until then, radical proposals to reform the Court are likely to constitute ongoing collateral damage.

Justice At Stake closes its doors

Today brings the sad news that Justice At Stake, an important court reform group of the past 16 years, has closed down due to funding woes.  JAS had moved in recent years toward more explicit advocacy of merit selection, which did not sit well with some in its core donor base.

I had the great pleasure of working with Justice At Stake during my time with the Institute for the Advancement of the American Legal System (IAALS), and I was consistently impressed how deftly and charismatically its leadership brought together reform groups from around the country.  I made friends and colleagues from the Brennan Center for Justice, American Judicature Society, Lambda Legal, Pennsylvanians for Modern Courts, National Center for State Courts, and countless other organizations.  Even when I disagreed with certain individuals on other matters of policy, I was always heartened by our shared conviction that the American courts deserved both reform and vigorous defense.  It was a testament to the JAS leadership that we were always kept focused and on track.  Its legacy is sure to last.