Leader McConnell In The Washington Post: “Term Limits For The Supreme Court Would End Our Independent Judiciary”
WASHINGTON, D.C. – U.S. Senate Republican Leader Mitch McConnell (R-KY) penned the following op-ed in today’s edition of the Washington Post:
Earlier this week, President Biden said that “no one is above the law.” We know he does not mean that. For nearly four years, the Biden-Harris administration has defied lawful orders and undermined judicial authority.
When Justice Department officials told line attorneys to ignore subpoenas from congressional investigators, one of Biden’s own judicial appointees replied, “Are you kidding me?” When the Supreme Court ruled that transferring hundreds of billions of dollars in student loan debt onto the taxpayer is illegal, the president continued hunting for loopholes and said defiantly, “This fight is not over.”
For decades, the courts were a reliable ally of the left and its policy aims. This is no longer the case, and Democrats are not taking it well.
Biden’s latest push for Supreme Court “reform” is merely an extension of this liberal frustration at an independent judiciary that follows the Constitution and applies the laws as written. The president first vented this frustration by naming a commission to study court expansion after fewer than 100 days in office.
That scheme went nowhere. Now, he has proposed the next steps. And no matter how tired or predictable, these direct attacks on a core institution of our democracy deserve swift refutation. Consider each of Biden’s proposals in turn:
First, in the wake of the court’s decision to reaffirm presidential immunity, he wants to massively undermine it by constitutional amendment. In support of that idea, he claims that he shares “our Founders’ belief that the president’s power is limited, not absolute.” Certainly, that would be news to anyone who has watched this president govern.
The Biden-Harris administration has repeatedly rewritten our immigration laws from the White House, directed alarming surveillance of religious communities, and empowered unelected regulators to wreak havoc on small businesses and major employers alike.
But even if you ignore this record and take Biden at his word when he claims to understand the limits of his power, history tells us that presidents rightly enjoy immunity for official acts.
Second, the president suggests that the existence of term limits on his own office justifies the imposition of such limits on a separate, coequal branch. This is a non sequitur, easily dispelled by the stated intention of the Founders.
Alexander Hamilton explained in “Federalist 78” that life tenure was essential to an independent judiciary. Because “nothing can contribute so much to its firmness and independence as permanency in office,” he wrote, “this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”
The Supreme Court itself has repeatedly reaffirmed the importance of life tenure, including in majority opinions authored by staunch liberals such as Justice Hugo Black in United States ex rel. Toth v. Quarles (1955) and Justice William J. Brennan Jr. in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. (1982).
But even if the notion of term limits for justices were not contrary to the Constitution, Biden fails to contend with the separate, equally dangerous blow it would deal to the Senate’s power of advice and consent. The only way each president would be guaranteed two justices to “appoint,” as he has proposed, is if the Senate became a rubber-stamp sideshow. One might expect a proud former chairman of the Senate Judiciary Committee — who argued publicly (as early as 1992) that the Senate need not consider an opposite-party nominee in an election year — to grapple seriously with such a foreseeable consequence of his proposal.
Third, in seeking to justify his subversion of the court’s existing code of ethics, the president suggests that a separate code designed specifically to govern the conduct of lower-court judges should also apply to the nine justices. Never mind that there are real, practical and constitutional differences between the Supreme Court and the lower courts, not least of which is that lower courts are established by Congress while the Supreme Court is established by the Constitution. Empowering inferior-court judges to enforce Supreme Court ethics is topsy-turvy.
Such a scheme is no less absurd than handing binding authority over U.S. Senate ethics to state legislatures — or for that matter, the House of Representatives.
Despite the slapdash, election-year expediency of Biden’s proposal, the underlying issue is more than some parlor debate for law professors. The president proposes to hamstring the only independent branch of the federal government empowered to shield individual Americans from the whims of the executive and the tyranny of legislative majorities.
There is no substitute for an independent judiciary, and the left should not be allowed to dress up its attacks as “reform.”
The Senate, a firewall in its own right against simple majority rule, understands this essential role. In recent years, the Senate has had to defend the core feature of this firewall against attacks from within our own chamber. Today, those of us concerned for the separation of powers must now defend a coequal branch with few protections of its own.
Many years have passed since Biden traded service under Article 1 for a job under Article 2. I wonder if my former colleague knew then that he would one day use it to undermine Article 3.
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