President Biden’s Supreme Court commission includes a variety of primarily liberal legal experts, with some conservatives as well, and is tasked with providing the president with a report on the current debate around potential reforms to the court, including court packing.
It is a potpourri of law school professors, retired federal judges and former government lawyers. Some have lauded it as a collection of serious scholars to examine serious issues. Others have called it a smokescreen for Biden to eventually propose court packing.
“This faux-academic study of a nonexistent problem fits squarely within liberals’ yearslong campaign to politicize the Court, intimidate its members, and subvert its independence,” Senate Minority Leader Mitch McConnell, R-Ky., said. “It’s just an attempt to clothe those ongoing attacks in fake legitimacy.”
The group’s fundamental task, according to Biden’s executive order that created the commission, is to write an “account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system and about the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court.”
This is to include “historical background” and arguments “for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”
The White House press release said that among the specific topics the commission will investigate are “the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
Biden said during the presidential campaign that he was “not a fan” of the idea, but refused to rule it out entirely.
Here’s the background of some of the most notable members of Biden’s Supreme Court commission.
Robert Bauer is one of the co-chairs of the commission. He was the White House counsel under former President Obama before being named to chair a similar presidential commission on election administration, according to his New York University Law biography. Bauer was also a legal adviser for Biden’s presidential campaign.
Bauer currently is a professor of practice and distinguished scholar at NYU Law. He also previously worked for Obama’s presidential campaign and was a counsel for Senate Democratic Leader Tom Daschle in the 1999 impeachment trial of former President Clinton.
According to a 2009 Politico story on Bauer’s selection as Obama’s White House counsel, the choice of Bauer concerned government watchdogs who were worried that Obama was straying from his campaign finance reform promises. Republican election lawyer Michael Toner, however, called Bauer a “lawyer’s lawyer.”
Bauer in 2018 wrote in The Atlantic that Democrats shouldn’t pack the Supreme Court due to the potential institutional damage such a move could cause.
He panned Republicans for “hijacking” the seat currently occupied by Justice Neil Gorsuch that Obama nominated current Attorney General Merrick Garland to. But, Bauer said, court packing “would still be a mistake” because “Trump’s opposition would do better to distinguish its reform politics from anything resembling the approach of this president, which seeks to undermine institutions and associated norms to engineer his preferred outcomes.”
Christina Rodriguez is the other co-chair of Biden’s commission. She is currently a professor at Yale Law School and, according to her Yale bio, she clerked for late Justice Sandra Day O’Connor, a Reagan appointee, on the Supreme Court before spending many years in academia and serving a stint in the Obama Justice Department.
Rodriguez has also been a contributor at events for the conservative and libertarian Federalist Society at the Yale student chapter, including as recently as 2019 alongside controversial Trump-appointed Judge Neomi Rao of the D.C. Circuit Court of Appeals. But that same year she also spoke at at least one event for the Federalist Society’s liberal counterpart, the American Constitution Society.
Most of the Yale professor’s recent work centers around immigration policy rather than the judiciary, so her opinions on court packing are not clear. But she has been relatively supportive of the Biden administration on Twitter in recent months, including with positive posts about Garland and new Associate Attorney General Vanita Gupta.
Caroline Fredrickson is a former president of the American Constitution Society, who has said she is open to court packing in the past. According to The Hill, Fredrickson has noted – accurately – that it is “not written in stone that the court has nine seats.”
“I think the Kavanaugh nomination has put a fire under progressives when it comes to the Supreme Court. It’s a recognition of the enormous impact the court has on our lives, the capacity to undermine key progressive victories like voting rights, controlling money in politics, reproductive rights and so forth,” she also said, according to The Hill.
Fredrickson has also called for ending the Senate filibuster, a necessary step for Democrats if they were to pack the Supreme Court. And she was heavily involved in commenting on the Trump-Russia scandal related to alleged coordination between the former president’s 2016 campaign and the Russian government.
Jack Goldsmith is a Harvard Law professor and a senior fellow at the right-leaning Hoover Institution based in Stanford University. He served in the Department of Justice’s Office of Legal Counsel under former President George W. Bush.
Goldsmith recently co-authored a book with Bauer titled “After Trump: Reconstructing the Presidency.”
Despite that collaboration, Goldsmith has made clear that he is a conservative, in one 2019 PBS interview calling the Robert Bork, the ill-fated Reagan Supreme Court nominee, a “superstar.” And he was a vocal supporter of Justice Brett Kavanaugh’s Supreme Court appointment, calling him “immensely qualified for the Supreme Court: an outstanding lawyer and judge; a great teacher and serious scholar of the law; and a generous, honorable, kind person.”
Sherrilyn Ifill is the president of the NAACP Legal Defense Fund and is an outspoken liberal on social media, television and in other mediums.
She called the confirmation of Justice Amy Coney Barrett “an utter travesty” and called for “reform in our judicial nomination and confirmation process in order to safeguard our democracy” in response, though her statement did not explicitly call for court packing as many other liberals did at the time.
Ifill did accuse McConnell, then majority leader, of packing the court by simply filling open judicial vacancies.
“Mitch’s conundrum: the desire to make ‘court-packing’ an issue to attack opponents, and the stronger desire to crow about the success of his own court-packing agenda,” Ifill tweeted.
Ifill was notably on the Supreme Court shortlist released during the Democratic presidential primary by Demand Justice, an organization that has redoubled its advocacy for packing the Supreme Court since Biden’s election.
Other notable members
– Former D.C. Circuit Judge Thomas Griffith, a George W. Bush appointee who is considered a conservative legal luminary and is a regular on the Federalist Society speaking circuit.
– Laurence Tribe, a Harvard law professor who is considered one of the foremost left-leaning constitutional law scholars. He was a co-founder of the American Constitution Society.
– Walter Dellinger, Duke Law School professor and former acting solicitor general under former President Bill Clinton.
– Michael Waldman, the current president of the left-leaning Brennan Center for Justice and former director of speech writing for Clinton.
You can read the full White House list of commissioners here.