Mitch McConnell (R-Ky.) is the Senate minority leader.
Coming from President Biden’s top diplomat, this suggested a surreal lack of self-awareness. Just a few days earlier, here at home, the Biden administration had taken another step to erode the independence of our own Supreme Court. It had published a first draft of radical findings from the pseudo-academic commission that the president created to flirt with the radical concept of court-packing.
The president’s decision in April to stand up this commission was no isolated event. Naked attempts to bully judges have become a core priority for today’s Democratic Party.
Early last year, my Democratic counterpart, Sen. Charles E. Schumer (N.Y.), joined activists on the steps of the Supreme Court and threatened two justices by name should they disappoint liberals with a particular ruling.
A few months before that, as The Post reported, sitting Senate Democrats, including the now-chairman of the Judiciary Committee, sent the court an outrageous amicus brief that read like a ransom note from junior-varsity mafiosos. “The Supreme Court is not well,” they threatened, “and the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured. …’”
In other words: Nice independent judiciary you’ve got there. Sure would be a shame if something happened to it.
For decades, Americans across the political spectrum agreed that President Franklin D. Roosevelt’s attempt at court-packing in 1937 was an embarrassment. In 2019, Justice Ruth Bader Ginsburg affirmed that “nine seems to be a good number.” Justice Stephen G. Breyer has echoed that view and warned that court-packing would erode public trust. But in the most recent Democratic presidential primary, multiple candidates, including our current vice president, expressed openness to packing the court. This year, both House and Senate Democrats have introduced actual legislation to do it.
Biden may have wanted to appear that he was sidestepping the issue by merely setting up a commission to study it. Don’t be misled. This was radical and unacceptable presidential behavior, part of a larger campaign to make independent judges feel as though they are on probation. This attack on the separation of powers comes from the same liberals who became hysterical whenever Attorney General William P. Barr made a routine decision on a mundane subject.
The Biden commission’s draft report was another attempt to appear moderate while doing radical things. The commission criticized the crudest form of court-packing — the simple addition of seats — but pivoted to an approving discussion of another idea that is barely less radical: canceling justices’ life tenure.
Do not be fooled. Even as the political left tries to spin the cancellation of life tenure as a half-step back from an even crazier opening bid, term limits would still be institutional vandalism. If a Republican administration came anywhere near flirting with such a proposal, the outrage from liberals would have been deafening.
Judicial independence is as fragile as it is important. The Framers of our Constitution took great pains to protect it. One of the most important safeguards is the fact that federal judges serve for life. Alexander Hamilton laid it out in Federalist 78: Since the judiciary is “in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches . . . nothing can contribute so much to its firmness and independence as permanency in office.” Hamilton concluded, and his fellow founders agreed, that life tenure was “indispensable.”
Every single American deserves every possible guarantee that they will receive impartial justice. It would be beyond reckless for Democrats to smash this centuries-old safeguard in a fit of partisan pique. The judges who decide citizens’ fates and defend their liberties should not be looking to the exits — not daydreaming about seats on corporate boards, not giving performances to tee up next acts in media or partisan politics.
Even if Democrats fail at structurally changing the court, they could still succeed at applying improper pressure. The left wants to prey on justices’ instincts to protect their institution by having “court reform” hang over them like a sword of Damocles. The left hopes that a manufactured cloud of fake concerns about the court’s legitimacy may be enough to change which cases the court decides to hear, how it hears them and what rulings it hands down.
But if the justices fell into Democrats’ trap and let political threats change legal outcomes, they would not be shoring up their institution, but undermining it. It would poison the actual source of the court’s legitimacy — its impartiality. Moreover, appeasement would not even end the threats and reckless tactics. It would guarantee more. Hostage-takers will not settle for half a loaf.
The Senate exists to defeat shortsighted proposals and protect our institutions from structural vandalism. That is our job. The American people need their judges to do theirs: follow the law wherever it may lead, independent and unafraid.
Biden campaigned on unity and moderation. He won a close victory with an evenly split Senate and negative coattails in the House.
As this month’s elections confirmed, Americans did not hand Democrats any mandate to let radicals transform the country. And they certainly have no mandate to permanently damage the rule of law.