Executive Order 14023 directed the Commission on the Supreme Court of the United States to produce a report that includes an “account of the contemporary commentary and debate about … the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court.” Several witnesses who testified before the Commission noted that recent debates over Supreme Court reform have taken place amidst controversies surrounding the processes by which Justices are nominated and confirmed. The evaluation of proposals for Court reform may thus require both attention to existing problems with the confirmation process and consideration of how a proposal, if implemented, might affect that process.
One witness, Jeffrey J. Peck, who previously served as General Counsel and the Majority Staff Director of the Senate Judiciary Committee, proposed changes to Senate rules and norms designed to improve the confirmation process. These proposals grew out of his examination of the history of the Senate’s treatment of Supreme Court nominees over the last several decades and numerous interviews he conducted with former Senators and senior staff—thirteen Democrats and twelve Republicans. That group included individuals who had been involved in seventeen Supreme Court nominations, from 1981 to the present.
In the Introduction to this Report, we have provided a brief account of contemporary debates surrounding the confirmation process, consistent with our charge. But consideration of proposed reforms to the confirmation process are beyond that charge, and we accordingly do not analyze or endorse any of the recommendations offered to us. Nonetheless, we do wish to highlight some of the analysis and recommendations in the Peck testimony.
In this Appendix, we have included excerpts from Mr. Peck’s testimony. The full testimony is available at the Commission website at https://www.whitehouse.gov/wp-content/uploads/2021/07/Peck-Testimony.pdf
