The Administration Wants Judicial Reform. They Shouldn't Ask Only Lawyers for Advice.
The Biden administration is assembling a judicial reform commission. The commission will study the federal judiciary and propose reforms when it completes its work. While all Americans — left, right, and center — should applaud its formation, the commission needs to avoid a few obvious problems.
Foremost, the administration should NOT staff the commission entirely, or even mostly, with lawyers. If the problems with the judiciary were such that lawyers could identify and solve them, Congress, which has no shortage of lawyers, would already be in perfect position to do the commission’s work.
Instead, the administration should appoint people from a wide variety of educational and class backgrounds to the commission.
Political scientists have a trove of research on institutional design to draw on, and they think about courts differently than lawyers. And, political scientists reflexively disagree among themselves just as much as, if not more so, than lawyers, so they’ll represent a diversity of viewpoints.
The commission should include non-lawyer representatives from business and labor organizations, not only because they appear in federal court a lot, but also because they have unique perspectives on how hierarchical organizations work effectively and how individuals work well within them.
Ask a selection of recent litigants — not litigators — in federal courts to join the commission as well. The administration could draw from a hat names of individuals who have appeared in federal court to obtain a handful of willing participants. While it may sound haphazard, it’s still better than stuffing the commission with politically connected lawyers.
The fourth group that ought to have representatives on the commission is perhaps the most controversial: persons convicted of federal crimes. In spite of their transgressions, convicted criminals consistently have the most at stake when they interact with the legal system. Folks who have been acquitted of federal crimes should also have direct representation on the commission.
Staffing issues aside, the commission could also run into trouble given its wide ambit to study and propose reforms for the entire federal judiciary, including the Supreme Court.
In light of last fall’s storm over Justice Ruth Bader Ginsburg’s death and Justice Amy Coney Barrett’s confirmation, Supreme Court expansion is likely at the top of Democrats’ wish list for the federal judiciary. In reaction, Republicans proposed a constitutional amendment to fix the Court at nine justices.
If the commission adopts either proposal, or doesn’t address the size of the Court at all, it will embarrass itself. Court size is the organizational issue right now; the commission must say something about it.
The commission should offer a proposal that will satisfy neither side, since bipartisan dissatisfaction usually is an indicator of an effective reform. They should propose a Constitutional amendment that preserves Congress’s power to alter the size of federal courts, yet mandates that a presidential election must intervene before the winner of that election can fill the new seats.
The commission also must address the perceived influence of law clerks in the federal judiciary, usually comprising recent law school graduates who work for a federal judge for a short time, normally one year, before joining a high-powered law firm or law school as a professor. Their precise roles vary from judge to judge, but clerks typically do their judge’s legal research, write first drafts of judicial opinions, and prepare the judge for oral arguments. The non-lawyers on the commission will have their greatest effect on this issue. Appointees who are attorneys likely served as clerks or have friends who have. A person not inculcated into the American legal system will view things differently.
Imagine a lower middle-class litigant discovering that her counsel was at a disadvantage in a case because the opposing firm had hired the judge’s former law clerk, which might give them “insider” knowledge about the judge’s proclivities. Or, imagine a labor union official finding out about the incredibly long hours clerks work for meager — by DC standards — salaries.
The commission could rule to reduce the number of hours they’re allowed to work. This would effectively raise Americans’ confidence that it’s actually the judges, rather than a group of hot-shots just out of elite law schools, who exercise the judicial power of the United States.
There are more reforms to address, of course. But the Biden Administration can legitimize the commission’s suggestions by including people with diverse experiences. Commentators often deride commissions as places where reforms go to die, but the substantial influence of non-experts could paradoxically keep judicial reform alive and possible.
James Sieja, assistant professor of government at St. Lawrence University, studies the federal court system and teaches courses in the U.S. Constitution.