A blue ribbon bipartisan panel created by President Joe Biden got a little bluer Friday after two conservative panelists resigned. The commission to study changes to the U.S. Supreme Court began its work, in April, with 36 members.
No changes in membership of President Biden’s commission were announced by the White House before Friday’s meeting. Eyebrows were raised, then, when observers realized some members names were not called during the roll call.
Duke University Law School Professor Marin Levy questioned what happened to two conservative members of the commission. “Two of the more conservative members, Jack Goldsmith & Caleb Nelson, are not present today & their names were not called,” Levy noted in a post to her Twitter account. “I take from this that they are no longer Commissioners.”
Harvard Law Professor Jack Goldsmith and University of Virginia Law Professor Caleb Nelson are no longer members of the commission, White House officials later confirmed.
“These two commissioners have chosen to bring their involvement to a close,” White House spokesman Andrew Bates said in a statement to BloombergLaw. “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.”
Controversy began Thursday after the commission released a 46-page draft of its findings that spoke favorably of creating term limits for judges but expressed reluctance about adding justices. The commission was created by Biden in response to calls from members in the progressive wing of his party, who advocate packing the Supreme Court with more judges to counter the three high court appointments made by former President Donald Trump.
When the draft analysis for proposals to expand the court were released Thursday, progressives and liberals in favor of having more Supreme Court justices were not happy.
Former federal district court Judge Nancy Gertner opined that the report “tilts rather dramatically in one direction.” Gertner said 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.
“Court expansion is likely to undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the Constitutional system, and there are significant reasons to be skeptical that expansion would serve democratic values,” the draft analysis states.
Later in the draft, the authors say recent polls suggest the majority of Americans do not support expanding the number of Supreme Court justices. “And, even as some supporters of Court expansion acknowledged during the Commission’s public hearings the reform — at least if it were done in the near term and all at once — would be perceived by many as a partisan maneuver,” the draft’s authors add.
Harvard law professor Laurence Tribe said the draft created the impression that, theoretically, enlarging the court is a possibility but the arguments for it are swamped by the arguments against.
“I think a report that pours cold water on the one clearly legitimate exercise of congressional power to respond to a major jurisprudential trend … would be a report I would have trouble signing,” Tribe stated, according to excerpts of his remarks.
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