A presidential advisory panel's support for judicial term limits to replace lifetime appointments is drawing fire from one of its members.
Adam J. White, a member of the 34-person panel of experts, warned in a Wednesday statement published by the White House against any changes to the court other than helping decide cases "under the rule of law." Doing so would be a "recklessly shortsighted" conclusion, White said.
Biden appointed the judicial advisory panel as many Democrats seethe over the ideological complexion of the federal judiciary, particularly the Supreme Court. Former President Donald Trump, working in tandem with then-Senate Majority Leader Mitch McConnell of Kentucky, made the confirmation of federal judges a top priority. Most galling to Democrats, Trump made three Supreme Court appointments, cementing a 6-3 conservative majority, while Senate Republicans denied former President Barack Obama a third nomination, even though he had nearly a year left in his term in office.
The advisory panel demurred from supporting the expansion of the Supreme Court, a favorite Democratic prescription for countering conservative influence. But, without making specific recommendations, it backed the theories behind staggered, 18-year terms (with a seat opening every two years) with the idea of each presidential term getting at least one high court appointment.
White, a senior fellow for the American Enterprise Institute, said that was a bad idea.
"By tying Supreme Court vacancies and appointments directly and exclusively to the outcomes of presidential elections, a term-limits framework would further corrode the appearance of judicial neutrality and independence, making the court a spoil not just of politics, but of presidential politics exclusively," he said.
"And to reliably deliver Supreme Court appointments to the president, a term-limit framework would need a constitutional amendment preventing the Senate from disagreeing with a president’s preferences (as the Commission’s report describes candidly). In an era when Congress needs to be reinvigorated, advocates for judicial term limits would only further diminish it," White said in the statement, issued as the Biden judicial advisory committee disbands.
White told the Washington Examiner he initially approached the commission "fairly open-minded" on the subject of term limits. But he came away from the group's deliberations thinking "it would be a big mistake for a variety of reasons."
WARREN CALLS TO 'EXPAND' SUPREME COURT DESPITE BIDEN COMMISSION'S RELUCTANCE
For the last few months, I served on the President's Commission on the Supreme Court. Today the White House released my final statement, briefly outlining why I think the major "reform" proposals are so dangerous. I'll have much more to say in weeks ahead. https://t.co/CzQsPf60Fb— Adam White (@adamjwhitedc) December 16, 2021
The Supreme Court commission submitted its draft final report to the president earlier this month without recommending any specific policy recommendations. Rather, the report outlines the thought processes behind the experts on the panel and provides the executive branch with some insight as to how legal scholars from a variety of political backgrounds would seek to change the framework of the highest court.
White also highlighted that for himself and the other 33 commissioners, the widest "gap" in disagreements surrounded the issue of court expansion.
"I'm not against reform," said White, a Harvard Law School graduate who is an assistant professor of law and the director of the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason University.
"I think there are reforms that the judges ought to consider for themselves, just as I think there are reforms that Congress ought to consider for itself, and I think that their reforms of the presidency ought to consider for itself," he said.
White called for more self-reforms instituted by the justices' own "self-restraint." He noted that "judges increasingly time their retirements to maximize the chance of being replaced by a similarly-minded appointee."
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White added, "The trend is understandable, but in an era when political parties have polarized on judicial method and principle, the trend also risks undermining the public’s trust in judicial neutrality."