President Biden’s commission on court reform is likely to recommend sweeping changes to the judiciary system, including an expansion of lower courts.
The commission, which Biden announced on the campaign trail, came after activists pressured him to dilute the influence former President Donald Trump exerted on the courts through judicial nominations. Biden, in October, called for a bipartisan team of experts to examine the federal court system, which he said was getting “out of whack” under Trump.
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The commission is still being formed, but several of its leaders have confirmed their involvement in the project. These include officials from the administrations of former Presidents George W. Bush and Barack Obama, as well as longtime judicial scholars.
Bob Bauer, an Obama official who most recently served as a legal adviser to Biden, is set to co-chair the commission. He is expected to be joined by former Obama and Bush Justice Department officials, as well as Caroline Fredrickson, the former president of the liberal American Constitution Society. Neither Bauer nor Frederickson responded to a request for comment.
But in the past, the two, along with other people involved in the commission, have at times offered their opinions on how they believe the courts can be reformed. Bauer, in a 2005 op-ed for the Washington Post, advocated for term limits on Supreme Court judges, an idea which has recently gained traction among court activists.
Bauer also accused the court of being “isolated, imperious and opaque” and questioned many of its long-standing practices, including its refusal to allow cameras into its chambers.
Frederickson has also in the past shown support for term limits, telling a Center for American Progress panel last year that she had evolved on the idea and believes that term limits could lessen partisanship in the court system.
Calls for term limits often transcend political ideology. Steven Calabresi, co-founder of the Federalist Society, wrote last year in the New York Times that Supreme Court justices should be limited to 18-year terms. Justice Stephen Breyer in 2016 said that he’s open to the same idea.
The commission is not expected to push for Supreme Court expansion, an idea which Biden rejected in his initial announcement last year.
“It’s not about court packing,” Biden told CBS in October. “There’s a number of other things that our constitutional scholars have debated, and I’ve looked to see what recommendations that commission might make.”
Biden added in the same interview that he is “not a fan of court packing.”
But, while the commission may not push for an expansion of the Supreme Court, Democrats have already begun advocating for an expansion of federal appellate and district courts, where Trump arguably made the deepest impact.
California Rep. Ted Lieu last week called for an expansion of the lower courts, arguing that since the last expansion occurred in 1990, the country’s population has grown. “It is time to increase circuit (and district) judges,” Lieu argues.
Lieu’s suggestion was not unprecedented. The court’s judiciary’s policy arm, the Judicial Conference, last year asked Congress for five more circuit court judges, as well as 65 more district court judges on the 9th U.S. Circuit Court of Appeals. And in a letter to Senate Democrats late last year, many court expansion activists argued that an even greater expansion was needed to match growing caseloads.
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“Our overwhelmed judicial branch is a crisis decades in the making,” the groups wrote.
House Democrats are holding a hearing on Wednesday to discuss the possibility of expanding lower courts.
