Supreme Court reporter Dahlia Lithwick explains at Slate, A Different Kind of Supreme Court Reform Is Already Happening:
Progressives desperately need massive structural court reform and they need it now. This is not a theoretical problem. Mitch Mconnell’s/Donald Trump’s takeover of the federal bench, coupled with conservative lower court judges emboldened to work quickly without need for any existing legal precedent, plus a looming clock ticking down to 2022 and the potential loss of Democratic control of the Senate, means that anyone interested in meaningful voting rights, LGBTQ rights, worker protections, the environment, or racial justice understands that unless big reforms come on short timelines, even bold Biden initiatives do not survive the decade. It’s no wonder progressive court reformers were maddened both by Biden’s commission to study the court—which will take six months to report on legal questions some of its members have already been studying for decades—and again by last week’s legislative effort to expand the court, which was strangled on arrival by Nancy Pelosi the same day it was introduced. One need not be a master of history or parliamentary procedure to understand that the window for fixing a dangerously activist and unrepresentative Supreme Court is closing quickly.
It’s not surprising that many of those who best understand the need for court reform are the ones most frustrated by these halting baby steps. As Elie Mystal, my colleague Mark Joseph Stern, and Ian Millhiser all note, it sure feels like the people tasked with taking structural court reform seriously are doing the very opposite. But putting aside the pros and cons of swift and decisive court expansion, the persistent fury that the Biden administration isn’t taking the onrushing tyranny of the Trump judiciary seriously may be missing one crucial factor: Court reform doesn’t come exclusively from changing the size and structure of the bench. It can also come informally, from the people exerting pressure on the current justices—and there’s good evidence that’s already happening.
Among the many unexplained mysteries of the current Supreme Court term, perhaps the greatest is the mystery of the court’s failures to take up major gun rights appeals [until today] or a long-simmering 15-week Mississippi abortion ban that might be the perfect vehicle for a challenge to Roe v. Wade. The conservative justices, who have—to be sure—tacked quickly and radically rightward on the court’s effervescent religious freedom docket, do so under cover of its shadow docket. But as Ariane de Vogue reported recently at CNN, the conservative legal movement that spent buckets of money and capital to seat Amy Coney Barrett is already feeling “disappointed and a little despondent” about her. The newest justice is looking “timid” to them, and failing to take the bold actions they demanded. Among some conservative court-watchers the frustration is palpable about both the Mississippi abortion case and gun challenges, as was her refusal to join Justices Sam Alito, Clarence Thomas, and Neil Gorsuch in accepting a challenge to the presidential election results, an outcome that has left Trump furious with the court. As de Vogue writes, Barrett’s refusal to tack hard right in her early months at the court raises the possibility, at least according to one unnamed conservative source, that “the court would end up in a 3-3-3 lineup in some cases with the liberals on one side, and Chief Justice John Roberts, Justice Brett Kavanaugh and Barrett in the middle and Justices Samuel Alito, Neil Gorsuch and Clarence Thomas on the far right.”
This fractionally more moderate bump at the center of the current court has proved maddening for the conservative legal movement because it also contains the chief justice, John Roberts, who was a reliable fifth vote for business and against regulation, to curb voting rights, to expand religious liberty, to diminish reproductive and LGBTQ rights, and otherwise to put into effect the Reagan/Bush conservative judicial wish list. And yet Roberts’ defections—they would say betrayals—in recent years have piled up, first on challenges to the Affordable Care Act but more recently in June Medical, a seminal abortion challenge from last term. Roberts is not on board in the growing series of cases setting aside state COVID measures in favor of religious challengers. With the death of Ruth Bader Ginsburg this fall and the addition of Amy Coney Barrett soon after, Roberts went from being the essential fulcrum on a court split between four liberal and four very conservative jurists, to a choice between being the sixth conservative on a far-right court or a dissenter. After years spent quietly steering the court—to the right, with incremental, sometimes invisible moves, with an eye toward protecting institutional prerogatives—the master of the long game ran out of track.
As Chris Geidner writes this week, the fact that Roberts has seemingly lost control of the court he controlled for so long is part of the reason court reform activists on the left have been emboldened to press for massive court reform: “This changed reality inside the court—in which five justices who seem ready, willing, and able to go further to the right than the chief justice himself—has also changed the reality outside the Supreme Court.” Geidner writes that the proposed legislation, introduced last week by Reps. Jerry Nadler, Hank Johnson, and Mondaire Jones and Sen. Ed Markey, to expand the size of the Supreme Court from nine to 13 justices, is evidence of “how far the Roberts court has fallen off the tightrope he’s been leading his colleagues on for the past 15 years.” And while the Biden commission to study court reform will be slow, and this proposed legislation is unlikely to produce concrete structural changes, the object here might honestly be both to push the issue into the public sphere and—as Geidner notes—to put pressure on Roberts to keep the right flank of his court from doing anything crazy enough to add fuel to the fire. [Good luck with that. Thomas, Alito and Gorsuch do not care.]
But here is where we slightly miss the point: It is this sustained and productive frustration on the left that is really new and, in theory, transformational. It signals that the court has become a big, important issue. A progressive left that often sleepwalked through the Merrick Garland blockade and had no idea how to message the judiciary in 2016 is now wide awake and furious. New progressive groups are pushing a debate about the courts that lived for years only on academic panels. Liberals who were outraged about the norm-busting hardball around Garland, Kavanaugh, and Barrett are not in fact waiting around for an adverse abortion or guns decision. They are energized about court reform right now, and they aren’t waiting for radical decisions to demand change. (P.S. We are already seeing radical decisions.)
This isn’t by any means the solution to being consigned to live under the dead thumb of the Trump judiciary for the foreseeable future. But it’s a tactic, and a tactic that the conservative legal movement has deployed for decades: talk about the courts, organize people around the courts, focus on the composition of the lower courts, and recognize that when the courts are way out of whack with the will of the people, the people can modulate them. I’ve long contended that the American public should treat the courts as we are advised to treat the occasional bears in the national parks: act bigger than you are. Showing up, paying attention, agitating, and complaining about democracy-shrinking decisions are all ways in which the public can affect courts that seem otherwise immune from any public checking function. Of course, some form of large-scale structural court reform is needed, and needed now. But even when it feels like sweeping back the sea, there is still power in sustained public attention and focus. To be sure, it is maddening to contemplate that we are in this moment achieving a small measure of court reform based simply on the horrifying things the court is not doing this week. That’s a tiny win, but it’s absolutely a step in the right direction.
Senate Democrats are preparing to take advantage of their majority to move quickly on President Biden‘s judicial nominees to “unpack” the federal courts of right-wing ideologues. The Washington Post reports, Senate committee to take up Biden judicial nominees in preview of potential Supreme Court fight:
The Senate Judiciary Committee will take its first look next week at President Biden’s initial batch of judicial nominees in what could serve as a preview of the next battle over the Supreme Court, with many Democrats hoping to soon have a vacancy on the high court that can be filled by a young, liberal justice.
Democratic lawmakers are moving quickly to review Biden’s nominees to take advantage of their slim majority in the Senate and begin to remake the courts with judges from diverse personal and professional backgrounds. All five nominees under consideration next Wednesday are people of color, including two Black women nominated to federal appeals courts in Washington and Chicago, and a former New Jersey prosecutor who would be the nation’s first Muslim American to serve on a federal trial court. In contrast, President Donald Trump’s picks were mostly White men.
The hearing featuring Judge Ketanji Brown Jackson, who is up for the influential U.S. Court of Appeals for the D.C. Circuit, could be a preview of what she would face if she is eventually nominated for a potential vacancy on the Supreme Court.
Many senators are keeping an eye across the street, awaiting word whether Justice Stephen G. Breyer, 82, will step down. Democrats have not overtly pressured the court’s oldest justice to retire, but privately they are hopeful he will step aside for a younger liberal while the party retains a majority — one that could disappear in the 2022 midterms or through an untimely illness that relegates them to minority status.
“Justice Breyer has been a great justice and he recognizes, I am sure, the political reality of our having control of the Senate now. But elections always have risks, so hopefully he’s aware of that risk and he sees it accordingly,” Sen. Richard Blumenthal (D-Conn.), a Judiciary Committee member, said in an interview this week.
While discussions have been muted, Blumenthal said the president and Senate Democrats need to be ready to move as swiftly as Republicans did to fill openings at all levels of the judiciary. Trump, working with then Senate leader Mitch McConnell (R-Ky.), installed more than 200 judges, including three Supreme Court justices.
“Whether it’s on lower-court judges or a potential Supreme Court vacancy, we have no time to waste,” Blumenthal said.
Republicans are also aware that next week’s hearing has implications for a possible upcoming Supreme Court fight, noting the importance of the D.C. Circuit when it comes to reviewing government policies and as a steppingstone to the high court. One-third of the current justices previously served on the appeals court bench in Washington.
“I don’t think it should be treated any differently than any other circuit court, but I’d say that I’m mindful of the fact that it is, historically, a proving ground, if you’d like, for Supreme Court nominees,” said Insurrection instigator Sen. Josh Hawley (R-Mo.), who sits on the Judiciary Committee. “It’s certainly more, I think, than any other one circuit . . . so I would approach it with that in mind.”
The slate of nominees scheduled to appear before senators Wednesday reflects Biden’s promise to emphasize diversity and a wide range of professional experience when picking judges.
Among the five nominees before the committee next week are two former public defenders, two former prosecutors and a county attorney and administrator. Candace Jackson-Akiwumi, an experienced public defender and current litigator in Washington, is nominated to the 7th Circuit. In 10 years at the Federal Defender’s office in Chicago, Jackson-Akiwumi represented 400 indigent clients accused of a wide range of federal crimes. She would be the only non-White judge currently sitting on the Chicago-based appeals court.
For the District Court in New Jersey, Biden’s nominees are Zahid N. Quraishi, a magistrate judge and former federal prosecutor; and Julien Neals, county counsel and acting Bergen County administrator. Regina Rodriguez, a former federal prosecutor, is nominated for the District Court in Colorado. Both Neals and Rodriguez were previously tapped by President Barack Obama, but their nominations stalled in the Republican-controlled Senate.
Much of the attention at the hearing, however, is expected to center on Jackson, a former Breyer law clerk and public defender who was also an Obama nominee on the U.S. Sentencing Commission.
Jackson, 50, was unanimously confirmed by the Senate in 2013 to the District Court after her nomination by Obama.
If confirmed to the D.C. Circuit, Jackson would succeed Attorney General Merrick Garland, who served on the appeals court for 24 years. Jackson was first contacted by White House counsel Dana Remus in late January about the potential opening on the D.C. Circuit, according to her 116-page Senate questionnaire. She met with Biden at the White House in late February to discuss her nomination two weeks before Garland was formally confirmed by the Senate.
Brian Fallon, co-founder of the liberal interest group Demand Justice, said Jackson’s hearing will be used by both sides as a warm-up for a possible Supreme Court vacancy. He predicted a narrow confirmation vote, as most Republicans, he said, would not want to back Jackson and then potentially have Biden tout their support in the coming months if he tries to elevate her to the high court.
“There will just be a lot of polarization on this vote,” said Fallon.
Liberal activists have been vocal in their call for Breyer to retire while Democrats control the White House and the Senate. They emphasize the urgency of the situation by pointing to the death last year of Justice Ruth Bader Ginsburg at age 87, which led to Trump nominating and the Senate confirming conservative Justice Amy Coney Barrett to replace the liberal icon.
Biden has promised to nominate the first Black woman to the Supreme Court. In addition to Jackson, Fallon’s group has researched another leading candidate, California Supreme Court Justice Leondra R. Kruger. If there is an opening, Fallon said the group is ready to immediately begin an ad campaign if either Jackson or Kruger is Biden’s pick.
In eight years on the District Court bench in Washington, Jackson has written more than 550 opinions and been reversed only nine times, according to Jackson’s questionnaire. Two other rulings were vacated on appeal and returned to the lower court, and in three cases, the D.C. Circuit affirmed her judgment, but criticized the substance of her ruling.
Republicans are likely to press Jackson about a series of rulings against the Trump administration that had mixed results on appeal. In 2018, she sided with labor unions in a challenge to restrictions on collective bargaining. Separately, she issued a nationwide preliminary injunction that blocked the Trump administration from dramatically expanding its power to deport migrants who illegally entered the United States by using a fast-track deportation process.
Jackson cites as most significant her opinion rejecting the Trump administration’s effort to block a congressional subpoena for testimony from former White House counsel Donald McGahn. Jackson wrote in 2019 that “presidents are not kings” and do not have the power to prevent aides from responding to legislative subpoenas on the basis of “absolute testimonial immunity.”
Retired conservative judge Thomas B. Griffith was part of a three-judge panel that twice reversed Jackson’s ruling in the McGahn case, but he has also endorsed her nomination. He told the committee in a letter this week that Jackson’s “record of excellence” throughout her academic and professional career would prepare her well for service on the D.C. Circuit and “carry on the tradition of collegiality that has been the hard-won hallmark” of the court.
Griffith, a nominee of President George W. Bush, wrote the panel opinions reversing Jackson in rulings that were subsequently vacated by the full D.C. Circuit, where the case is still pending and scheduled for argument in May.
Democrats are likely to highlight her rulings denying police officers’ claims of immunity from legal liability for arresting a protester after he used profanity and another case in which she held that prison officials had acted with “deliberate indifference” to a deaf inmate’s request for accommodations.
Senior Democrats say they see no risk in having a hearing for Jackson in April, with a confirmation vote for the D.C. Circuit a few weeks later, and then another, higher-profile set of hearings if Breyer retires and she is selected to succeed him.
“If she’s going to go on the Supreme Court, she’s going to go on the Circuit,” said Sen. Patrick J. Leahy (D-Vt.), a senior committee member who chaired confirmation hearings for two justices. “She’s qualified. She ought to be confirmed.”
Leahy noted the precedent for a quick stint on the appeals court before landing at the high court. Chief Justice John G. Roberts Jr. served two years on the D.C. Circuit before President George W. Bush nominated him to the Supreme Court. Justice Clarence Thomas had an even shorter tenure, confirmed to the appeals court in March 1990 and then nominated by President George H.W. Bush to the Supreme Court less than 16 months later.
Wednesday’s confirmation hearings are just a first step. There are many vacancies in the federal judiciary which need to be filled. And there is a desperate need to expand the number of federal judges to handle the backlog of cases in the federal courts. This is an opportunity to “unpack” the federal courts of right-wing ideologues and to begin to restore balance to the federal judiciary.
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