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Debate Over ‘Packing’ Supreme Court Divides Biden Panel

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Brian Fallon, the executive director of Demand Justice, a liberal group that supports expanding the number of justices, portrayed the commission as a waste of time.

“The best thing about this commission is that it’s finally over and the Biden administration will be forced to now confront the question of what to do about this partisan Supreme Court,” he said.

But the commission — led by Bob Bauer, a former White House counsel to Mr. Obama, and Cristina Rodríguez, a Yale Law School professor who served in the Justice Department during the Obama administration — saw its mission as illuminating difficult and complex issues rather than providing ammunition to one side.

It had been unclear until the meeting on Tuesday whether such an ideologically diverse group would manage to produce a document about such contentious issues and upon which it could unanimously agree. Several commissioners said they would not have written the report in the same way had it been their work alone, but nevertheless praised it as a valuable guiding document to thinking seriously about court reform issues.

David Levi, a former dean of Duke Law School and a former federal judge, said he was voting for the report as a fair assessment of the issues even though he strongly opposed proposals to change the court’s composition or limit its jurisdiction. He warned that such ideas would curtail the judiciary’s independence, undermining the rule of law, and reflected what autocrats abroad had done to eliminate challenges to their power.

Another former federal judge, Nancy Gertner, who is now a Harvard Law School professor, also praised the report, even as she argued for expanding the number of justices. She said that the Supreme Court’s legitimacy had been undermined by Republican efforts to “manipulate its membership,” and that its majority was enabling rollbacks of voting rights that otherwise would lead the court’s composition to evolve in response to the results of free and fair elections.

“This is a uniquely perilous moment that requires a unique response,” she said, adding, “Whatever the costs of expansion in the short term, I believe, will be more than counterbalanced by the real benefits to judicial independence and to our democracy.”



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