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Biden’s Supreme Court Commission Loses Two Conservatives (2)

Oct. 15, 2021, 7:08 PMUpdated: Oct. 15, 2021, 9:11 PM

President Joe Biden’s bipartisan commission studying changes to the U.S. Supreme Court, including court expansion, lost two of its conservative members ahead of a Friday meeting to review preliminary findings.

Caleb Nelson, a law professor at the University of Virginia, and Jack Goldsmith, a law professor at Harvard, are no longer members of the panel, the White House confirmed.

“These two commissioners have chosen to bring their involvement to a close,” White House spokesman Andrew Bates said in an emailed statement. “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.”

The commission, which has been working since April, originally had 36 members.

“I have resigned from the Commission,” Nelson said in an emailed statement Friday. “I was honored to be part of it, but I don’t have further comment.”

Goldsmith didn’t respond to requests for comment on his membership.

The commission on Thursday released a draft of its findings in which it wrote favorably of creating term limits for judges, an idea that has had bipartisan support, and cautioned against court adding justices, an idea gaining traction among Democrats.

The White House didn’t announce a change in membership before the meeting, but when Nelson and Goldsmith were skipped during the roll call, it raised eyebrows.

After the roll call, Marin Levy, a law professor at Duke, speculated on Twitter that Nelson and Goldsmith were not members anymore.

‘Tilts Rather Dramatically’

During the day-long session, several members criticized its initial documents for coming down against expanding the size of the nation’s highest court.

The report on this point “tilts rather dramatically in one direction,” said former federal district court Judge Nancy Gertner.

The “discussion materials” released in advance of the public hearing was “the first chance that we all have had to actually deliberate face to face” the contents of the commission’s report, Gertner said.

The commission, which is composed largely of law professors and former federal judges, is considering a wide range of changes to the Supreme Court, including term limits and limiting the kinds of cases that the justices can consider. On those other sections, the report is pretty balanced, said Harvard Law professor Andrew Manuel Crespo.

But with respect to court packing, which is the proposal that has garnered the most attention, Guy-Uriel E. Charles of Harvard Law School said the current draft “shades very much against court expansion without sufficient basis for doing so.”

The arguments in support of adding seats are “teed up to be knocked down” in the report, Crespo said.

‘Court Packing’

President Joe Biden had first proposed a commission to study the Supreme Court during the 2020 presidential campaign as he faced pressure from progressives to endorse the idea of adding new justices as counter-balance to the 6-3 conservative majority.

Then-candidate Biden suggested that he didn’t think reforms like “court packing” were wise and could undermine the legitimacy of the court as an apolitical institution.

That point of view comes across in the current draft, Crespo said, adding that there needs to be more evenhanded when dealing with the two sides.

At the same time, the draft’s framing of the issue as a zero sum game for Democrats and Republicans fails to grapple with nonpolitical reasons for expanding the court, said NAACP Legal Defense and Educational Fund’s Sherrilyn Ifill.

There’s little consideration of how lifetime tenure means the justices are often out of step with the general population and leads to a lack of diversity among the justices, Ifill said.

Despite that there are many reasons to expand court apart from politics, this report “frames the entire discussion this way,” Ifill said.

Gertner emphasized that the purpose of the commission is to encourage debate on this issue, not stop it.

VIDEO: Bloomberg Law examines what the Framers envisioned for the Supreme Court and the long history of presidents and Congress attempting to shape it to fit their political needs.

Too Much Oxygen

Not everyone agreed, however.

University of Chicago law professor William Baude said he thought the report didn’t go far enough in discouraging adding seats to the high court.

“I do really worry that giving as much oxygen as we do” to the issue is “dangerous and wrong,” Baude said. He added that the draft doesn’t do enough to emphasize the norms that would be broken by allowing Congress to intervene with the Supreme Court because of political considerations.

The current draft of the report “would itself contribute to destroying a norm” of the court as above politics, Baude said.

“There a lot of work to be done on this chapter,” said University of Alabama law professor Tara Leigh Grove.

(Updates with details of Friday proceedings)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com and Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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