It was clear from the very start that the Supreme Court ‘study commission’ was a fig leaf for the Biden administration’s naked attempt to pack the court with radical justices. But the bipartisan panel on Friday issued a preliminary report that portends leaving the Biden regime empty-handed with its recommendations.
“The Nation has recently witnessed sustained, widespread, and vehement calls for structural reform of the Supreme Court, as well as counter arguments to ‘keep nine’,” the report said. “The calls for Court expansion stem most immediately from the Senate’s refusal to act on President Obama’s nomination of Judge Garland to the Supreme Court and from its confirmation of President Trump’s three Supreme Court nominees.”
“Many Democrats deeply contested-for varied reasons–the legitimacy of each of these three successive nominations to the Supreme Court,” the report goes on. “Some also increasingly question the legitimacy of the Court itself and what they regard as the anti-democratic, anti-egalitarian tilt of its doctrines. The assorted controversies, both procedural and substantive, that have surrounded the Court and its composition in recent years have led to calls from significant segments of the Democratic Party for reform of the Court. These arguments for structural reform, and particularly for Court expansion–a notion that not-so-long ago was absent from debates about the Supreme Court–have now become commonplace. Yet defenders of the current Court and its composition hold ve1y different views of the recent confirmations, the evolution of the Court’s jurisprudence, and the propriety and necessity of structural refo1m. In their view, the recent nominations appropriately reflect the result of electoral successes, and the changing doctrine represents a principled approach to constitutional interpretation. Meanwhile, even some Democratic critics of the Court oppose expansion, warning that any attempt to expand the Court or otherwise alter its structure would threaten the independence of the Court and its role in the constitutional system.”
This is as close to a scathing rebuke as one is going to find from a bi-partisan study commission. But particularly delicious is the report’s recounting of how the country got to this point to begin with.
“Even after Republican Senators refused to act on the Garland nomination and eventually confirmed Justice Gorsuch instead, Democratic critics who accused Republicans of ‘stealing’ a Supreme Court seat largely refrained from calling for Democrats to retaliate with a Court expansion plan,” the report pointed out. “Indeed, references to ‘Court packing’ consisted primarily of arguments that Republicans themselves had in fact ‘packed the courts’ by refusing to act on the Garland nomination and by moving swiftly to confum President Trunp’s nominations to the lower federal courts. That said, prominent figures in the Democratic Party did argue as early as 2019 that the Republican Senators’ decision not to act on the Garland nomination might justify Court expansion at the first opportunity.”
“Supreme Court reform also became a pivotal topic in the 2020 Democratic primary, as several Democratic candidates endorsed significant reforms,” the report continued. “The Democratic Party Platform ultimately called for “structural court reforms to increase transparency and accountability,’ and then-candidates Trump and Biden debated the merits of Court expansion.”
The study commission, after weighing the purported merits of court expansion, makes the important point that ading justices would undermine the Court’s perceived legitimacy.
“But the risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court’s legitimacy,” the commission remarks. “Recent polls suggest that a majority of the public does not support Court expansion. And as even 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 Supreme Court study commission did not issue a definitive position on the matter of packing the court, but the balance of the report overall is that there are considerably more serious drawbacks than benefits. This may be the reason, whether due to political pressure or the sense that everything necessary that needed to be said was said in the report, that two conservatives on the panel suddenly resigned from it on Friday.
“Two conservative members have resigned from the bipartisan panel President Biden assembled to study proposals for reforming the Supreme Court,” the Hill reported. “The departures Friday came from University of Virginia law professor Caleb Nelson, a former clerk to Justice Clarence Thomas, and Harvard Law professor Jack Goldsmith, former top official in the Justice Department’s Office of Legal Counsel under President George W. Bush.”
“Nelson confirmed to The Hill that he resigned, adding ‘it was an honor for me to be part of the Commission’,” the report noted. “Goldsmith did not immediately respond to requests for comment.”
“The White House expressed its appreciation for the professors’ five-month tenure on the commission, but did not provide an explanation for the departures,” the Hill continued.
“These two commissioners have chosen to bring their involvement to a close,” White House spokesman Andrew Bates said in a 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.”
It doesn’t take another study commission to figure out what happened: Two conservatives suddenly resigned from a panel after it submitted a report the Biden administration didn’t agree with. Maybe it’s a sign the White House will just pack the study commission with partisans until it gets the political result that it wants.
OPINION: This article contains commentary which reflects the author's opinion.