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Term Limits More Likely Than Court Packing from Biden Panel

Feb. 16, 2021, 9:44 AM

Allowing cameras in their courtroom, establishing term limits for Supreme Court justices, or slowly adding lower court judges are ways a bipartisan commission appointed by President Joe Biden could recommend reshaping the judiciary.

Those potentially significant changes would fall short of adding new members to the high court, the idea embraced by progressives to overhaul the judiciary in a hurry.

Radical change was never the point of the commission, which Biden proposed during his presidential campaign as he faced progressive pressure to endorse court packing as a way to thwart the Supreme Court conservative majority that expanded under Donald Trump.

A bipartisan commission “almost by definition can’t possibly recommend something that fits the progressive agenda,” said Noah Feldman, a Harvard Law School professor and Bloomberg Opinion writer. He added later: “That’s why it was constructed that way, it’s not an accident.”

The commission, which is still being formed, will have 180 days to craft recommendations. An administration official said the effort will include the Supreme Court and lower federal courts.

Bob Bauer, a Biden campaign lawyer who served as White House counsel for President Barack Obama, and Cristina Rodriguez, a Yale law professor and a senior Justice Department official under Obama, are among the members, the administration confirmed.

Other members are former American Constitution Society President Caroline Fredrickson and George W. Bush Justice Department official Jack Goldsmith, according to Politico.

To legal experts, the presence of Goldsmith is a sign the commission won’t embrace court packing or other sweeping changes sought by liberals. Fredrickson and Goldsmith didn’t respond to inquiries about their membership.

“The commission, if it continues to be built this way, will end up being rather mainstream in what they do,” said Elliot Slotnick, a political science professor at Ohio State studying judicial politics, in reference to the four members whose names have been reported.

Part of it is that pragmatism reflects political reality. Given Democrats’ narrow Senate control, any idea the panel puts forward will require Republican support as long as the legislative filibuster remains in place.

Biden made clear when he proposed a commission in October that he didn’t intend for it to be a vehicle for expanding the Supreme Court.

“It’s not about court packing,” Biden told CBS News in October. “There’s a number of other things that our constitutional scholars have debated, and I’ve looked to see what recommendations that commission might make.”

Lower Court Expansion

Growing the lower courts is the sort of proposal that Republicans have endorsed previously. The federal judiciary wants it, too.

The judiciary’s policy arm, the Judicial Conference, has asked Congress for five new appellate judges for the San Francisco-based Ninth Circuit in addition to 65 trial judges. The last time appellate courts grew was in 1990.

The commission’s focus on that issue “might be helpful to get real traction,” said Marin Levy, a law professor at Duke who studies judicial administration.

Lower court expansion bills have attracted bipartisan support but haven’t advanced. To make it palatable to Republicans, any lower court expansion bill likely would have to spread the appointments across multiple presidential terms. That’s how previous court expansions were structured but that’s not likely to satisfy progressives seeking immediate change.

Term-Limits for Justices

Creating term limits for Supreme Court justices is another possibility, though it would likely require a constitutional amendment.

Feldman said he could see the commission considering term limits for the Supreme Court “so that we would be spared the indignity and confusion and inappropriateness of worrying about the health of the justices.”

Bauer expressed support for term limits in 2005, while a lawyer at Perkins Coie. Term limits has support from conservatives like Steven Calabresi, a founder of the conservative Federalist Society who’s written in favor that he favored 18-year terms.

Fredrickson also seemed to support the idea on a Center for American Progress panel in August 2020. She praised Calabresi’s past writings, saying “I’m feeling more and more that I can see eye to eye with Steve Calabresi as time goes by.”

Fredrickson said the benefits of term limits include modernizing the court and diminishing partisanship.

Cameras in Court, Ethics

The commission might also consider bipartisan reforms that the judiciary could implement itself like adding camera access in courts and clarity around judicial discipline, Lauren Bell, a dean at Randolph Macon College who studies judicial nominations, said.

Sens. Partick Leahy (D-Vt.) and Chuck Grassley (R-Iowa), both former chairs of the Judiciary Committee, have advocated for adding cameras in the Supreme Court for years to increase public access to oral arguments.

Similarly, after sex harassment allegations against federal judges surfaced in recent years, lawmakers on both sides of the aisle questioned the judiciary’s workplace reforms. Moreover, the Supreme Court is exempt from the Code of Conduct that applies to the judiciary, a point that has rankled some lawmakers and outside observers.

Great Expectations

For some progressives, the commission won’t be a success unless it arrives at Supreme Court expansion as its solution.

“There’s no path to restoring Democracy and there’s no path to address planetary emergencies if you fail to expand the court, so that’s what the commission needs to say,” Aaron Belkin, director of Take Back the Court, which advocates for expanding the Supreme Court.

“If the commission says anything else, then it hasn’t done it’s work, and it’s not taking the issue seriously, and it’s frankly engaging in bullshit,” Belkin said.

There’s also concern that the format of the commission could blunt any real exploration into the differences between the way Democrats and Republicans have approached the courts.

“The commitment to making the commission bipartisan will inevitably kind of clip the wings of any efforts to make it a serious look at how Democrats have failed relative to Republicans when it comes to the courts,” said Leah Litman, a University of Michigan law professor and a host of the Supreme Court podcast “Strict Scrutiny.”

But others temper their expectations, hoping the commission will at least address what they see as the root issues for the courts.

“I’m skeptical that they will identify the solution, but if they clearly lay out the problem, the solutions become very, very obvious and hard to deny,” Molly Coleman, executive director People’s Parity Project, an activist group aimed at reforming the legal system. She also said she hopes the conversation includes people impacted by the legal system, not just academics.

—With assistance from Courtney Rozen

To contact the reporter on this story: Madison Alder in Washington at malder@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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