Sen. Chris Coons said Sunday that he was open to expanding the number of justices that sit on the Supreme Court should Joe Biden be elected president, The Hill reports. Said Coons: “Like Joe Biden, I’m not a fan of expanding the court but we have a few weeks here to see whether there are four Republicans who will step back from this precipice.”
In his Town Hall on ABC Thursday night in Philadelphia, Joe Biden said the same thing, that was not a fan, but we may have to consider some options to reform and expand the Court if Republicans confirm the Hands Maid Amy Coney Barrett to the Supreme Court. Coons on Sunday said the consideration depends on whether there are four Republicans in the Senate who will scuttle the nomination this week before the election.
Coons is obviously the most significant Senator to make the case for Court Reform given his conservative traditionalist “bipartisanship is the goal” profile. He is also the Democratic Senator furthest away from a primary challenge from the left, giving added weight to his pronouncement as it cannot be dismissed away as a statement to placate the left.
This is good news, I think. Wish, however, he would not just focus on the Supreme Court. The entire Fed Judiciary has been undersized for some time now — the commitment ought to be to review the capacity of the entire system and implement plans to make sure the system is re-sized to accommodate the Fed case load. Take on fixing a very big systemic problem which also let’s you undo the way that the GOP is looking to cement its minoritarian rule.
For many years the US Supreme Court assigned one justice to one Circuit Court of Appeals. That stopped as the number of Circuit Courts passed 9. There are now 11. It would be perfectly logical for their then to be 11 Supreme Court justices, with each one assigned to handle emergency matters and requests for stays, etc. in an assigned Circuit.
While Supreme Court justices are appointed to life terms (based on good behavior) according to Article III of the US Constitution, that article gives Congress the authority to create and regulate the “lesser courts”. There is no reason why those lesser judges should not be limited to specific terms and then subject to renomination and/or reconfirmation,
Expanding the court is perfectly rational. 9 was set in the 1800’s when we had 30 million population and 13 fewer states. The court needs broader representation of a very different country today.
Many noted legal scholars like Larry Tribe, Larry Lessig, Norm Ornstein and many others do not agree with Mitch and think that Article II does NOT require life terms on the Supreme Court.
https://fixthecourt.com/wp-content/uploads/2019/07/July-8-law-profs-letter.pdf
Indeed, Representative Ro Khanna of California has introduced the first bill in Congress on the matter. It’s certainly a long shot at this point no question, but the conversation is happening, with more adept and prestigious legal minds than what we can muster here weighing in on the subject, such as the 60+ on that above letter from last year.
https://www.congress.gov/bill/116th-congress/house-bill/8424
I’ve made this point before but not as implicitly, and maybe I’m reading too much into it, but I find it interesting that Ted Kaufman is quoted in support of term limits:
Ted Kaufman, former U.S. Senator, D-Del.; former Professor of the Practice, Duke University Law School: “It would be a positive change if presidents stopped appointing young justices just so they may serve lengthy terms on the Supreme Court. And it is not wise to have major issues that may require new approaches left in the hands of justices who have lived in the cloistered life of the court for decades. That is why I am in favor of limiting justices’ tenures.”
https://fixthecourt.com/2019/07/dozens-legal-scholars-demand-term-limits-supreme-court-justices/
Now why do I find this interesting? Ted Kaufman is of course Biden’s former long time chief of staff and close confidante. What is he doing today you ask?
Nothing much, just heading up Joe Biden’s transition team. Again.
https://thehill.com/homenews/campaign/503725-former-sen-kaufman-to-run-biden-transition-team
I won’t pretend to know what kind of discussions they have, but personally I think that Biden having people in his inner circle open to this sort of major reform is a promising development.
Now if we had term limits and an expanded court (I’d be fine with a court as large at the 9th circuit) now that would truly be something.
That should be Article III, keyboard operator issues.