Biden’s commission on the judiciary must put justice over politics

Some Democrats want to seek political revenge for the Republicans’ unapologetic use of their power over the past decade to engineer a conservative judiciary. Since October, they have been calling on President Biden to expand and pack the Supreme Court and federal judiciary with liberal judges. Biden has wisely resisted these calls and is setting up a commission to provide thoughtful ways to repair the partisan damage done to the courts over the past decade. 

When it comes to reforming the courts, Democrats need to tread carefully. Our criminal and civil justice systems are keystones of our economic and political liberty; they keep order and facilitate the peaceful resolution of disputes. Neither system is perfect, but these objectives are unachievable if there is a belief among enough Americans that cases are decided by partisan politics, not justice.

The good news is that Biden has entrusted this effort to two highly respected lawyers, former White House Counsel Bob Bauer and former Deputy Assistant Attorney General Cristina Rodriguez. The persistent guidepost for their work must but ensuring the impartiality of the courts. Their big challenge, therefore, is putting this political genie back in the bottle.

Since 2015, Donald Trump has relentlessly polarized the view of the courts. If a judge ruled against his interests, Trump called them “totally biased” “Obama picks” who “hate Trump,” and evidence that the judiciary is “broken.” He also attacked judges, including Supreme Court Justice Ginsburg, personally. When Chief Justice Roberts defended Democratic appointees, Trump responded, “Sorry Chief Justice . . . they have a much different point of view.” Many Americans believe Trump’s tropes. 

In the Senate, Republicans have openly increased the partisanship of the judicial confirmation process. Most notably, they held up Merrick Garland’s Supreme Court nomination but rushed through Justice Barrett. Under President Bush, they derailed Harriett Myers’ nomination because she was not a tested conservative. For lower courts, Republicans refused to fill vacancies in President Obama’s second term, but “left no vacancy behind” during the Trump presidency. 

Along the way, the judicial selection norms that helped protect the judiciary from becoming a partisan branch of government have eroded, with both sides blaming each other. Since 1953, the American Bar Association (ABA) has rated the professional competence, integrity and temperament of each nominee. But the ABA did not highly rate some conservative appointees. Presidents Bush and Trump accused the ABA of partisanship and excluded it from their selection process. 

The Senate has also curtailed procedures facilitating cross-party collaboration on judges. Since 2017, it largely eliminated the “blue slip” process for federal circuit nominees, which gave home-state senators, including of the opposing party, a say on judges from their states. It has done away with the filibuster, which generally required some bipartisan support for judicial nominees, for both lower court and Supreme Court candidates. In addition to being more partisan, the judges selected in the past four years have sorely lacked diversity.

The first challenge for the Biden commission, therefore, is to find new ways to depoliticize judicial selection. The starting point should be a structured judicial selection process. The administration and senators from both parties should put together a committee of experts to assess each appointee. Unqualified ideologues should not be put on the bench. An earnest, non-partisan vetting process in lieu of the ABA’s evaluation can provide needed assurances to those who find themselves in a federal courtroom that the judge, regardless of party, is capable and will be open-minded. 

The commission can also evaluate the many state judicial selection models. For example, the Missouri Plan has been the standard-bearer for nonpartisan appointees, though even that process has been politicized in recent years. The commission should study and learn from the many state and federal successes and failures in creating a judicial selection process to meet today’s needs.

The commission will also be considering organizational reforms to the judiciary. As indicated, some Democrats want to expand the number of federal judgeships, including justices on the Supreme Court, because Democrats would initially fill the new slots. They point to Republicans in Georgia and Arizona who did this in 2016. There may be valid reasons for increasing the size of the Supreme Court (for example, as part of a package of reforms for increasing the judiciary’s capacity to administer justice) but political payback is not one of them.

At a forum last month, former Attorney General Eric Holder suggested term limits for the Supreme Court and minimum age requirements so someone cannot sit on the court for 40 years. He acknowledged that these changes may require constitutional amendments, but they are certainly worth running to ground. Ideally, we should get more justices like Ginsburg, Thurgood Marshall and O’Connor, who had distinguished and varied careers before serving in the judiciary. 

The Biden commission should not shy away from ideas or flexing levers of power merely to avoid controversy. Deliberateness is not weakness. But it is critical that Democrats not be driven by partisan score-settling, interest group politics or desired rulings. The integrity of the courts is what matters most, and perception counts. For many Americans, a courtroom is not a welcome sight. They may disagree with an outcome, but the fair administration of justice must be unquestionable.

Phil Goldberg serves as the director of the Progressive Policy Institute’s Center for Civil Justice and is the office managing partner of Shook, Hardy & Bacon LLP in Washington, D.C.