OPINION:
Should the Democrats win both runoff elections in Georgia and gain control of the Senate, President-elect Joe Biden and Democratic leaders will come under considerable pressure from their more radical party members to pack the U.S. Supreme Court.
Mr. Biden dodged this issue during the recent campaign by promising to appoint a bipartisan commission on judicial reform, but what is needed is presidential restraint and a solution for congressional dysfunction that no secret sauce for picking judges can provide.
Any reasonable reading of Article III of the U.S. Constitution indicates the framers intended that federal courts be insulated from politics — that’s why we have lifetime tenure. It leaves the writing of laws to Congress with the approval of the president.
Unfortunately, Congress is increasingly paralyzed when faced with even urgent national challenges. For example, the pandemic is about to render millions of Americans permanently unemployed, homeless and hungry, and state resources have been stretched to the limit by shutdowns and emergency medical expenses, yet Congress provides inadequate temporary relief.
Too little effort has been expended by Congress to arrive at legislative solutions that would balance — and equally disappoint — competing interests on divisive issues like abortion, immigration policy and the fate of DACA recipients and efforts to address climate change.
Instead, state legislatures pass laws that reflect regional preferences that challenge Roe v. Wade in hopes that a now more conservative Supreme Court will overturn that decision or limit its scope.
U.S. participation in the Paris Climate Accord is determined by executive orders that flips back and forth depending on which party occupies the White House.
President Obama’s 2012 executive actions granted DACA recipients temporary legal status to reside and work in the United States. For two years prior, he admitted that the president lacks constitutional authority to implement such a measure without congressional approval, but he went ahead anyway. Subsequently, the Supreme Court effectively legislated a solution by blocking Mr. Trump’s efforts to repeal Mr. Obama’s actions until a Democrat occupies the White House.
The four liberal members joined by Chief Justice John Roberts voted to defer the issue by stating Mr. Trump had provided inadequate justification for his decision. It borders on the absurd that undoing an unconstitutional presidential action, however popular but publicly acknowledged by its principal architect to be illegal, should require much justification.
Congressional dysfunction has important roots in the Voting Rights Act, which encourages the creation of majority-minority districts, the increasing trend for Americans to reside in like-minded communities and gerrymandering. Together those ensure mostly safe red and blue districts, where who gets to Congress is more often determined in the primaries than in general elections.
This sends ideologically rigid individuals to Congress fearful of opposition in the next round of primaries and disinclined to compromise. States and citizens have increasingly turned to the courts on divisive issues like climate change, and it all ends up in the Supreme Court.
Conservatives want jurists that will stick to the written texts of statutes and the constitutions and effectively frustrate this strategy. Liberals want jurists that will embrace more expansive interpretations to write new laws they can’t push through Congress. The latter has been the fashion since the Warren court reordered the relationship between church and state by banning school prayer, Bible readings and the like.
Advocates of reform often point to the United Kingdom where an independent commission — not the political party in power through the prime minister — selects members of its Supreme Court based on merit. But in Britain parliamentary rule and party discipline ensure when voters elect a government, it can implement what it promises.
Here, presidents can’t deliver Congress, even when their own party controls it. If that were not true, Mr. Trump would have gotten his border wall completed in two years, replaced the Affordable Care Act and passed immigration reform.
Creating a commission to select justices to make laws that Congress is too dysfunctional to pass will just shift the fight to deciding who gets to serve on the commission. Conservatives would lobby for appellate court judges and constitutional lawyers that are strict constructionists and liberals the opposite.
No commission is going to resolve political polarization in Congress. Instead, recognizing the inherently political role the courts have been assigned by congressional abdication, the best we can do is allot each party an equal number of appointments. The president could alternate nominations consulting with the Democratic and Republican members of the Judiciary Committee much like the possession arrow in college basketball.
• Peter Morici, @pmorici, is an economist and emeritus business professor at the University of Maryland, and a national columnist.
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