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Biden SCOTUS reform panel also reflects on ‘dysfunctional’ confirmation process

Democrats and Republicans often describe the process as broken, but generally blame the other side for the deterioration.

In a public but largely under-the-radar videoconference meeting in July, Biden’s Supreme Court commission heard from reformers who said establishing stricter rules and official deadlines for hearings and votes on High Court candidates could curb what many see as an epic dysfunction.

“I was very pleasantly surprised,” said Jeffrey Peck, who advised Biden when he chaired the Senate Judiciary Committee in the late 1980s and authored a set of proposals for reform of the Senate. confirmation. “I have received beautiful emails. … I am cautiously optimistic.

Peck conducted anonymous interviews with 25 people who had been former senior Senate officials – and even some who served as senators. He says the group was roughly evenly split between Republicans and Democrats. From there, he developed a series of proposals to overhaul the process.

The plan proposed by Peck aims to ensure that Supreme Court candidates have a vote in almost all circumstances. Hearings would take place between 30 days and 50 days after an appointment, a committee vote would take place 10 to 21 days after the hearings ended, and the Senate review would follow shortly thereafter.

Only an appointment made after August 1 of an election year would be exempt from the schedule.

An early draft “discussion” of the commission’s report, released Thursday, looked positive on the reforms, but was hesitant whether the matter fell directly to the commission, which Biden created by executive order in February.

The draft report states that the confirmatory reforms “deserve careful attention and consideration” and notes “extensive and bipartisan testimony we have received regarding the intense conflict that now characterizes this process”. Draft documents refer to an addendum that would address confirmatory reforms, but no draft of it appears to have been released on Thursday.

What was published did not appeal to those on the left who demand major changes to the court, such as increasing the number of judges, rotating panels or limits on judges’ terms, which are currently valid for life. . While many casual observers may not have realized it, the committee was never asked to provide explicit recommendations on any of these proposals, only to consider the arguments for and against them.

“It wasn’t even worth the wait,” said Brian Fallon of Demand Justice, an advocacy group. “The paralysis by analysis reflected here is exactly what you would expect from a commission made up mostly of academics, including several die-hard conservatives who are fully satisfied with the status quo.”

“From the start, the purpose of this commission was not to confront in any meaningful way the partisan capture of the Supreme Court, but rather to buy time for the Biden administration while it waged other legislative battles,” Fallon added.

Still, some liberals deeply concerned about the current conservative majority of six court judges have said they welcome any public discussion about the composition of the High Court and its future.

“The conversations that the Supreme Court Commission has initiated are an important step towards achieving the reforms we desperately need – up to and including the enlargement of the Supreme Court,” said Rakim Brooks of the Alliance. for Justice, another progressive legal advocacy group. “The need for reform is important. Only democracy can save this court, and the committee’s report will help raise awareness that reform is not only possible, but necessary.

Of course, one of the reasons the commission’s march orders don’t call for explicit recommendations is that Biden seems opposed to the idea of ​​packing the tribunal.

While he ducked the question during last year’s presidential campaign, as a senator in 1983, Biden called President Franklin Roosevelt’s attempt to add judges “a bonehead” and “a terrible, terrible mistake. “

Almost all proposals for reform of the court itself would require the passage of a new law. Some may require constitutional amendment. Those looking to improve the confirmation process point out that its rules could be overhauled by majority vote.

“I think they are certainly more viable than some of the more structural reforms,” ​​said Peck, the former Senate legal adviser. “There is recognition on both sides of the aisle that the current process just isn’t working.”

Curt Levey, a prominent advocate for the Republican Supreme Court nominees, said he believes the power McConnell used to stop Garland’s nomination would be worth trading in for a guarantee that future candidates will not be stranded .

“I hope something will be done, because I think we are heading to the point where it will be almost impossible to confirm someone when the Senate and the Presidency are controlled by different parties,” Levey said. “It might be something some Republicans and some Democrats want, but I think it’s not a good thing for the country.”

Levey, chairman of the Justice Committee, admitted that it was not really possible to lock down rules that a future Congress could not change. But he said agreement on the process could prove difficult to dispose of in the heat of a future appointment.

Many proposals also include implementation delayed until 2025 or later, meaning lawmakers and their staff would not know whether they or the opposition would be in charge in the Senate or the White House when they would come into force.

“Part of the game delayed the nominees for various reasons, but no one is saying this has to continue,” Levey said. “I’ve long been in favor of some sort of schedule to make sure you go through the entire confirmation process. You can be defeated, but at least you would get a vote, at least it spins things in that direction. “

Asked about the commission’s next report last week, Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) Said he didn’t have much information on the matter. “I pay attention to it, but I have no information,” he said.

POLITICO asked if he was open to the changes to the confirmation process discussed by the panel, Durbin replied, “Of course.”

Others close to the process say they think the reform effort is a mad rush.

“What they’re trying to do is force committee votes and force Senate votes, and that just won’t happen,” said Mike Davis, former lawyer for the Senate Judiciary Committee under the leadership of Senator Chuck Grassley (R-Iowa). “It depends on the president and the majority leader, and they’re not going to give up on that. ”

“It is the greatest power of the president and leader of the majority. They control the agenda in the committee and in the field, ”Davis added. “There’s no way they’ll give that power away. … It is an exercise in navel gazing by an irrelevant commission.

Even some who approve of many Confirmation Reform proposals say pushing them through is fundamentally hopeless.

Ben Wittes, a Brookings Institution scholar who wrote a book 15 years ago on the failure of the confirmation process, told the commission at its last hearing that the growing polarization had likely doomed efforts for change. rule-based.

“My main concern is to interrupt this prisoner’s dilemma mentality that both sides operate in, and I don’t think we’re going to do it through these kinds of technical rule reforms,” ​​said Wittes, founder of the Lawfare blog. . “Having said that, if we can, I think it would be a wonderful thing.”

Marianne LeVine contributed to this report.