The draft report of the “Presidential Commission on the Supreme Court of the United States” lived up to the hopes, not down to the fears, some of us held for it.
In the end, the report’s best part may have been one appendix that analyzed an issue related to, but not entirely within, the commission’s original purview — namely, the political blood sport that the Senate’s judicial confirmation process has become.
The whole report, released Dec. 7, is a surprisingly fair-minded 288-page tome on the history of and proposed reforms of the high court’s size, structure, and jurisdiction. Conservatives’ fears increased when President Joe Biden, by the Wall Street Journal’s count, included 29 liberals on the 34-person commission. The report wisely avoided making itself a stalking horse for leftists who aim to “pack the court” by increasing its size.
The commission makes no recommendations on that or other proposals. Instead, it studiously gives ample and nonpejorative airing of both sides of major proposals to reform aspects of the Supreme Court. There are a considerable number of such proposals, and policy wonks will find the report a near nirvana.
Let’s focus here, though, on Appendix C. The commission was not assigned the task of analyzing the Senate’s process for considering judicial nominations, but in that appendix, it nonetheless highlights important, thoughtful testimony it received on that subject. As I wrote in April, the biggest “problem isn’t how the Supreme Court operates, but rather how the Senate runs the nomination process … [in which] the use of anonymous leaks, the abuse (and subsequent elimination) of filibusters as a weapon in confirmation battles, and the level of vitriol are all out of control.”
The commission seemed to agree in large part. Despite its lack of purview on the topic, it included a superb reformist recommendation by Jeffrey J. Peck, who served (under then-Sen. Joe Biden) as staff director of the Senate Judiciary Committee. Peck proposed that the Senate adopt a standing rule setting a strict timeline for the consideration of a Supreme Court nominee. Senate rules would require that nominees receive an up-or-down vote by the whole Senate (unless the nomination has been withdrawn) no matter what the Judiciary Committee recommends.
Meanwhile, nominees should have reason to expect they won’t be blindsided by last-minute attacks on their character such as those leveled against Justices Clarence Thomas and Brett Kavanaugh. To that end, each new Senate should formalize a memorandum of understanding outlining the role of the FBI in nominees’ background checks, including a timeline for review and a guarantee that both the Senate’s majority and minority parties receive the FBI report simultaneously.
In a passage that will please conservatives, Peck writes that the liberal American Bar Association “should not play the dominant role it has in the past in reviewing nominees. The Committee should place equal weight on multiple bar associations without affording a lead role to any single one.”
In all, Peck said, his proposals are designed to “remove considerable partisanship from the process.” To further keep both parties from trying to hijack the reforms for political advantage, Peck says they should not take effect until after the next presidential election, the result of which, of course, nobody yet knows.
Some, myself included, will quibble with the details of Peck’s recommendations. Their main thrust, however, and the thinking behind them are salutary. In sum: Regularize the process, be fairer to the nominees, leave less room for senators to game the system, and restore public faith in the system.
The Senate should take Peck’s ideas to heart and act accordingly.
