Policy Summary: During the 2020 presidential election campaign then Democratic Presidential Candidate Joe Biden said on the TV program 60 Minutes, “The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.” Biden was responding to talk over a replacement for Justice Ruth Bader Ginsburg who had passed away in September 2020. Republicans were then in control of the Senate and were pushing to speedily confirm nominee Amy Coney Barrett. Barrett was eventually confirmed to the Supreme Court with less than a week until the November 3, 2020 election.

In response to the speed of the Barrett nomination and confirmation to the Supreme Court Biden came under pressure, notably from the Progressive wing of the Democratic Party, to expand the Supreme Court. The Barrett nomination helped cement a 6 – 3 conservative majority on the Court and there were fears that the Court could make changes or outright reverse abortion and LGBQT rights, among others. In response, Biden promised a commission to examine possible reforms to the Supreme Court and the federal judiciary.

Policy Analysis: President Biden has already begun staffing the commission with some notable names emerging. Reports are that Biden campaign lawyer Bob Bauer will co – chair the commission along with Christina Rodriguez, a Yale law school professor. Jack Goldsmith, a Harvard law professor, and Caroline Frederickson, a former president of the American Constitution Society, have also been mentioned as persons being appointed to the commission.

The formation of the commission, which has yet to be formally announced, and the staffing of the committee signals that President Biden is willing to listen to the concerns of the Progressive wing of his party who want to implement change in the wake of the Barrett confirmation. But his choices for staffing the commission also signal that he is open to all proposals and not just the “court – packing” option. “Court – packing” refers to the tactic of adding additional seats to the Supreme Court and has become a talking point among Democrats because of how they feel that a Supreme Court seat was stolen from them due to McConnell’s actions on the Merrick Garland and Amy Coney Barrett nominations. But while this has been a popular proposal with some Democrats, President Joe Biden has admitted that he is “not a fan of court packing.” With the other members of the commission so far, it is becoming clear what proposals they support. Caroline Frederickson supports expanding the Supreme Court while Bob Bauer supports term limits for federal judges. But could there be other proposals or suggestions?

The court – packing and term limit proposals have received the most attention and pushback from opponents but there is a proposal not mentioned that should be a point of consideration by the commission. In order to reform the federal judiciary and the Supreme Court the commission should consider the experience a nominee has with conducting trials either as a district court judge or as a litigator. In – court trial work is a factor when the American Bar Association rates persons nominated to the federal bench and so this experience of understanding what people involved in a lawsuit go through should be considered. By emphasizing in – court trial work the Biden commission can limit nominees who are simply party idelologues and instead encourage justices and judges who know what it takes to work with people and solve their everyday problems. Chief Justice John Roberts and Justice Brett Kavanaugh are people certainly well – versed in the law and bright persons but much of their career lacks in – court trial work because they had been spent years working in Republican administrations. They can recite the law according to their political party but may be inexperienced in how the application of the law affects the ordinary person on the street.

If Biden’s commission is to make any real change to the Supreme Court and the federal judiciary as a whole, it needs to consider whether the courts and the people who are nominated to the bench can connect with ordinary citizens. Adding additional seats to the Supreme Court and limiting the period for how long judges can serve are valid proposals but making a concerted effort to select justices and judges who have first had experience dealing with ordinary people and their daily problems and concerns in trial court can go a long way in reforming the judiciary and making it more responsive to what a person needs when they have their day in court. LEARN MORE, LEARN MORE


Engagement Resources:

American Bar Association (ABA) – association’s webpage on its Standing Committee on the Federal Judiciary and how it rates nominees to the federal bench.

Demand Justice – non – profit group seeking to reform the Supreme Court.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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