OPINION: This article contains commentary which reflects the author's opinion
A pair of conservative experts who were members of the Presidential Commission on the Supreme Court have resigned, according to reports.
The resignations come as other legal experts complained that the panel was too biased against court-packing, a concept favored by progressives who have been pressuring President Biden to do it as a way to overwhelm the high court’s current right-leaning majority.
On Thursday, the White House released a preliminary draft of discussion items ahead of deliberations by the commission during a virtual hearing the following day, the Washington Examiner reported.
But before the virtual hearing, conservatives Caleb Nelson, a law professor at the University of Virginia, and Jack Goldsmith, a law professor at Harvard, resigned from the panel, according to a White House statement.
Prior to the hearing, conservatives Caleb Nelson, a law professor at the University of Virginia, and Jack Goldsmith, a law professor at Harvard, resigned from the panel, the White House said.
“These two commissioners have chosen to bring their involvement to a close,” White House spokesman Andrew Bates noted in an emailed statement to Bloomberg News. “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.”
In an email to the same outlet, Nelson said simply that he had “resigned from the Commission” and that he “was honored to be part of it,” but he didn’t explain why he was stepping away. The Washington Examiner said that it attempted to contact both experts but had not received any reply.
The outlet continued:
Some members of the bipartisan panel, now down two members from its original 36-person placement in April, called out the framing of discussion materials and alleged it lacked focus on institutional confidence, catering more toward partisan views. Others claimed the materials are “biased” against court-packing.
The draft materials on Thursday included text favoring term limits for judges. The report also noted Congress’s legal ability to expand the size of the Supreme Court bench but cautioned against adding justices, an idea popular among some progressives in the Democratic Party.
“This entire discussion is framed in the context of partisan politics. And I actually think that is a disservice to the exploration of this issue,” said NAACP Legal Defense Fund President Sherrilyn Ifill on the issue of court-packing.
During his campaign last year, Biden and his staff repeatedly refused to answer whether he would consider expanding the high court with left-leaning justices after President Donald Trump successfully nominated three conservatives during his single term.
Biden would not say, though at one point he told a reporter that Americans did not “deserve to know” what he thought about the matter. During his years as a U.S. senator from Delaware, he did not favor expanding the court.
In its report, the commission said there are “reasons to doubt” that the expansion of the nation’s highest court “would produce benefits in terms of diversity of efficiency.”
“There is no guarantee that a larger Court would be drawn from a more diverse group of individuals,” the commission noted further, adding that “a larger court may be less efficient than the current complement of justices.”
“To be sure, any Supreme Court Reform would likely require unified government,” the report stated. “Nevertheless, we believe it is important to recognize the risk.
“According to one [purportedly modest] estimate of the consequences of expansion as parties gain Senate majorities and add Justices, the Supreme Court could expand to twenty-three or twenty-nine Justices in the next fifty years, and thirty-nine or possibly sixty-three Justices over the next century,” the report continued.
The panel did, however, recommend that lower federal court judges rotate through the Supreme Court to serve various terms, though members acknowledged that idea may face a “constitutional obstacle,” citing Article III, Section 1, of the Constitution, which states that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”