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There's Already Fallout from the Release of Drafted Materials from Biden's Commission on Supreme Court

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Posted: Oct 15, 2021 11:00 PM
There's Already Fallout from the Release of Drafted Materials from Biden's Commission on Supreme Court

Source: AP Photo/Jose Luis Magana

President Joe Biden's commission to study the U.S. Supreme Court released drafted materials on Thursday night, with stated plans for the 36 members to meet for a discussion on Friday. However, two conservative members of the commission had resigned ahead of that meeting, Madison Alder and Kimberly Strawbridge Robinson reported for Bloomberg Law.

The members in question were Professor Caleb Nelson who taught law at the University of Virginia (UVA), and Professor Jack Goldsmith, who taught law at Harvard. 

Alder and Robinson's reporting included a statement from the White House, as well as from Nelson, and a mention that Goldsmith had not responded to request for comment:

“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.

As it turns out, the White House had not even announced that Nelson and Goldsmith had left the commission before the public meeting. Those listening in on the call were left to speculate after the roll call skipped the names of the two conservatives.

The released drafted materials more or less punted on the concept of court packing, though there is also a takeaway as to how the commission raised concerns to do with this fantasy from the Left, such as how it could lead to "questionable legitimacy to at least some members of the public." 

Progressives were rather irked in how it did not go far enough, as they saw it.

As Alder and Robinson noted:

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.

Alder had dedicated an entire article the night before to how "Biden Supreme Court Panel Draft Leaves Progressives Unimpressed." She included statements from leftwing groups which are particularly relentless in their demands to pack the court, and for it to be done immediately. 

Statements in Alder's reporting included:

“This preliminary report is exactly what we knew it would be. It’s a mix between a book report and an extended explanation that different people have different feelings about Court reform,” said Molly Coleman, executive director of People’s Parity Project. “We know that real people are being hurt right now by the Supreme Court, and we know that the only way to alleviate much of that suffering is to expand the Supreme Court.” 

...

“This Commission was always going to be, at best, a waste of precious time,” said Sarah Lipton-Lubet, executive director of Take Back the Court. “But now the Biden Administration has gifted Republicans a propaganda document that uncritically repeats a slew of right-wing canards while downplaying the Court’s obvious decline into partisan warfare.”

Lipton-Lubet said that “instead of waiting another month for the commission to finish its academic exercise, President Biden should immediately announce a plan to protect his agenda and our democracy from the Court[.]”

Dan Goldberg, legal director at the Alliance for Justice, said it’s not surprising that the document doesn’t make recommendations and weighs varying perspectives because that’s what they set out to do.

“What’s clear is that the commission has laid out the concerns of many regarding the current trajectory of the court and the assault on our rights,” Goldberg said. That analysis was aided by testimony from individuals who “made clear how dire the need for reform is” at the commission’s hearings, he said.

Thursday night reporting from John Kruzel and Morgan Chalafant included in for The Hill also included a statement from Brian Fallon with Demand Justice:

Demand Justice, a progressive group that has advocated for reforms such as expanding the court and creating term limits, issued a statement criticizing the draft materials as a waste of time and urging Congress to move forward with reforms.  

“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,” Brian Fallon, the group’s executive director, said.  

“From the beginning, the purpose of this Commission was not to meaningfully confront the partisan capture of the Supreme Court, but rather to buy time for the Biden administration while it fights other legislative battles.”

That two of the conservative members would be the ones resigning may leave some puzzled. 

Curt Levey, a constitutional law attorney and the president of the Committee for Justice, said in a statement for Townhall that "I was surprised to hear that Goldsmith and Nelson had resigned following the Commission’s issuance of a preliminary report that was largely critical of court packing and contained little for conservatives to vehemently object to. The report was arguably the best conservatives could hope for given that most of the Commissioners lean left. Consider that there are plenty of progressives on and off the Commission who are upset about the report. Harvard law professor Laurence Tribe, one of the Commissioners, complained that the draft report 'pours cold water' on court packing and Slate’s Mark Joseph Stern called the report “an abomination” and “a gift to the GOP." So I would have been less surprised if it were progressive Commissioners who resigned."

In a particularly apt headline, Ariane de Vogue for CNN wrote that "Biden's Supreme Court commission is leaving everyone unhappy." In addition to mentioning the resignations, she also noted that "one thing is clear: No one is satisfied."

Meanwhile, the commission appeared to be much more favorable towards term limits for justices.

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