The typical election-year debate over the kinds of justices the presidential candidates would nominate now involves far more extensive questions about the Supreme Court’s fundamental workings.
Vice President Kamala Harris has been largely silent, but those across the political spectrum expect her to aggressively attempt to pack the court and impose other significant changes if she wins the White House.
Defenders say Ms. Harris’ plan would offset former President Donald Trump’s appointments and attempt to restore the court’s “legitimacy.” Detractors call it raw politics.
“I think her passion for the pro-choice cause will translate into passion for changing the structure of the Supreme Court,” said Curt Levey, president of the conservative Committee for Justice. “The picture you get is of somebody who, as president, would likely be aggressive in terms of changing the structure of the Supreme Court.”
Liberals hope Ms. Harris would support term limits, appoint more members and introduce legislation to force a code of ethics on the justices.
“I am hopeful that she would be receptive to considering even more far-reaching proposals in some ways than what [President] Biden has suggested,” said Elliot Mincberg, senior fellow at People For the American Way.
In July, Mr. Biden and Ms. Harris embraced plans that included 18-year term limits on justices, allowing every administration two nominees for the high court and a binding code of ethics. They also called for a constitutional amendment to overturn the court’s decision this year on presidential immunity.
Ms. Harris has talked an even bigger game in the past.
In 2019, while running for the Democratic presidential nomination, she said she would be willing to add justices to counterbalance Mr. Trump’s nominees on the high court.
“We are on the verge of a crisis of confidence in the Supreme Court,” said Ms. Harris, then a senator from California, told Politico. “We have to take this challenge head-on, and everything is on the table to do that.”
This year, her campaign has hired Brian Fallon, who led Demand Justice, a liberal group that has pushed for significant Supreme Court changes.
Sen. Sheldon Whitehouse, Rhode Island Democrat, told Politico this year that he has contacted Ms. Harris about his ideas.
His proposed reforms included ethics standards and a bill to create a term limit by prohibiting longer-serving justices from hearing most cases that come to the high court.
“I can’t think of anything that Kamala Harris is not to the left of Joe Biden on, and court-packing is absolutely one of them,” said Carrie Severino, president of the conservative Judicial Crisis Network.
Senate Minority Leader Mitch McConnell, Kentucky Republican, said Tuesday that Ms. Harris is part of a “campaign to undermine judicial independence.”
“It would be difficult to draw up a more devastating blow to public confidence in the independence of a coequal branch of government than subordinating it to the election cycles of another,” Mr. McConnell said.
Forcing term limits would violate the Constitution, which says a justice “shall hold their Offices during good Behaviour.” This means a justice may serve for life, subject only to impeachment.
Justices could be added through legislation, which would likely require ending the Senate filibuster.
Mr. Levey said the court’s 2022 ruling overturning Roe v. Wade was significant for Ms. Harris and other Democrats who are intent on restoring the national right to abortion.
Ms. Harris this week said she would support ending the filibuster to enact national abortion legislation.
Democrats have pushed for a mandatory ethics code on the high court because of concerns over two Republican appointees.
Rep. Alexandria Ocasio-Cortez, New York Democrat, has moved to impeach Justices Clarence Thomas and Samuel A. Alito Jr.
Several articles accuse Justice Thomas and Justice Alito of taking luxury trips with billionaires and not recusing themselves from election-related cases and Jan. 6-related cases in which their wives expressed political support for Mr. Trump and his movement after the 2020 election.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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