Biden’s Supreme Court commission is leaving everyone unhappy

CNN

By Ariane de Vogue, CNN Supreme Court Reporter

As the Biden administration’s commission on the Supreme Court continues to meet, roll out pages of draft documents and engage in deep philosophical conversations about the past and future of the court, one thing is clear: No one is satisfied.

Conservatives, who currently enjoy a 6-3 majority on the court, think in large part it is unnecessary. Two conservatives, Jack Goldsmith and Caleb Nelson, quit the panel this week.

And liberals, stung over three successive appointees by former President Donald Trump after Republicans blocked the confirmation of a Barack Obama nominee in 2016, believe reform is desperately needed but know the commission has no real teeth. In its final report, which will be submitted to Biden in mid-November, it is charged with appraising various reform proposals, but it won’t issue firm, actionable recommendations.

Biden brought up the idea of creating the commission while campaigning for president, as he was being pressured by fellow Democrats to take a stand on court expansion to try to bring greater balance to the bench. While draft materials created by working groups released Thursday appeared to find consensus in favor of term limits, Biden on Friday evening flatly objected to the idea. (The commission appeared divided over adding more seats to the bench.)

Asked at the White House whether he supported term limits for justices, who currently enjoy life tenure, the President said, “No.”

The comment came after Democrats and court reform advocates criticized the report itself.

“This report is a disappointment to anyone who’d hoped for a hard-hitting effort to address the Supreme Court’s deep troubles,” Rhode Island Democratic Sen. Sheldon Whitehouse said in a statement.

And Brian Fallon, the executive director of Demand Justice, a group dedicated to court reform — and convincing Justice Stephen Breyer to retire in favor of a younger liberal nominee — did not mince his words.

“This was not even close to being worth the wait,” Fallon said in a statement.

“The paralysis-by-analysis reflected here is exactly what you would expect from a commission made up mostly of academics, including several diehard conservatives who are fully content with the status quo,” he added. He claimed Biden’s efforts were simply an effort to buy time while the President fights other legislative battles.

On Friday, the commission members met to take part in a sprawling Zoom call and discuss draft materials. Members spoke about term limits and court expansion. Many seemed deeply engaged in the intellectual feast of the subject matter and delighted to dig deep into the third branch. Others were ready with critiques of the report, and recommendations for future drafts.

Progressives spoke out during Friday’s session as well. Sherrilyn Ifill, the president of the NAACP Legal Defense Fund, was critical of one chapter of the report dealing with adding members to the court. She said a reader might be left with the impression that the working group did not think it was a good idea, even though the full commission hadn’t weighed in.

Harvard University Professor Andrew Crespo said he hoped commission members would go back to the drawing board to make “substantial revisions.”

But retired Judge Thomas B. Griffith, a George W. Bush appointee, said he thought the commission had to move very carefully.

He rejected any insinuation that the court is irretrievably broken and said, “the Supreme Court has played well its vital role.”

Two conservatives quit

Two conservative commissioners quit the panel, the White House said Friday.

Goldsmith, a conservative who worked in the George W. Bush administration, and Nelson, a University of Virginia professor and former clerk for Justice Clarence Thomas, left the commission. The reasons for their departures were not immediately clear.

“These two commissioners have chosen to bring their involvement to a close. We respect their decision and very much appreciate the significant contributions that they made during the last 5 months in terms of preparing for these deliberations,” said White House spokesman Andrew Bates.

In an email to CNN, Nelson wrote, “I can confirm that I resigned from the Commission, but I don’t have any further comment (other than to say that it was an honor for me to be part of it).”

CNN has reached out to Goldsmith for comment.

This story was updated with additional reporting.

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CNN’s Maegan Vazquez contributed to this report.