Politics

Litman: With Supreme Court reform ideas, Biden is playing the long game

Published

3 hours ago

July 29, 2024

Litman: With Supreme Court reform ideas, Biden is playing the long game

The first and easiest question to answer with respect to the package of Supreme Court reform measures that President Biden announced Monday is whether there is any hope of their passage or enactment by the current Congress.

There is not.

With Congress hopelessly polarized and the Supreme Court hopelessly politicized, there is no chance of action on Biden’s proposals in the coming months, and the administration well understands that point.

Indeed, before Biden even unveiled them in a speech at the LBJ Presidential Library in Texas, Republican House Speaker Mike Johnson pronounced them “dead on arrival.”

Why then choose now to introduce them? After all, Biden has steadfastly resisted pleas from progressives to try to reform the court — and he has been under pressure since he took office, because President Trump had just tilted the court to the right by appointing three justices.

The straightforward explanation for the timing is to make the Supreme Court, now quite possibly the most unpopular of all federal governmental institutions, a focus of the election, which would presumably nudge voters toward Vice President Kamala Harris.

It was no surprise (and presumably exactly what Biden and Harris wished) when Trump came out with a strident defense of the court.

But the proposals shouldn’t be dismissed as a mere political gesture. Biden and the Democrats are also playing the long game, looking in particular to make the court a campaign issue. Then if they win control of both chambers and the White House, they can portray their election as a mandate for substantial reforms.

Biden’s proposals are in three basic areas. First, ethics, responding to the series of scandals involving eyebrow-raising or nakedly partisan conduct by Justices Clarence Thomas and Samuel Alito. Second, time of service and method of appointment, which Biden proposes be changed to 18 years per justice and a fixed allotment of two new justices per presidential term. And third, the court’s recent, stunningly broad immunity opinion in the Jan. 6 Trump prosecution brought by the Justice Department.

Biden announced the reforms in a Washington Post op-ed that, interestingly, led with the immunity decision, which Biden wrote transgressed a bedrock principle of the nation: “No one is above the law.”

Indeed it does, but Biden and Harris, who was quick to endorse the proposals, obviously have calculated that of all the court’s recent unpopular moves, the immunity decision most offends the most American voters who might swing toward Harris.

Biden’s proposal recognizes that the decision can be overcome only by a constitutional amendment. I think that’s dubious; a careful reading of the Supreme Court’s sweeping immunity decision suggests it is ultimately anchored in perceived good government principles dressed up as constitutional law.

The problem here, as in one way or another with all the proposals, is the firmly entrenched principle that the Supreme Court has the last word. (One thinks of Justice Robert Jackson’s famous line “We are not final because we are infallible, but we are infallible only because we are final.”)

So that leaves the famously cumbersome process of a constitutional amendment, which requires either two-thirds of both houses or the states to request and three-quarters of the states to ratify.

The most recent constitutional amendment, the 27th, took more than 200 years to ratify. The Equal Rights Amendment, which was first proposed in 1923 to guarantee the rights of Americans regardless of their sex, still has not passed.

The ethics provision of the Biden package probably has the strongest chance of passing. It is conspicuous that the Supreme Court justices — alone among government officials — get to make and apply their own rules on issues such as whether they can take or must disclose gifts from parties who may have an agenda with the court. Although the court adopted ethics rules for itself last fall, they have no teeth. Justice Elena Kagan just last week called for the rules to be subject to an enforcement regime other than the justices themselves.

But in my view, the most important component of Biden’s package is his proposal to change Supreme Court terms from lifetime to 18 years, and, with the consistent rhythm of that span, guarantee each president precisely two appointments.

The design of the reform is to obviate the Armageddon quality of current confirmation battles. Lifetime appointments create very high stakes, leading to carefully curated fairly young nominees who can serve 40 years or more and have enormous, longstanding influence, as with the relatively young cadre of Trump appointees.

Term limits would prevent the imbalance that results if one president makes many appointments and others make few. Democrats are understandably frustrated at the bad luck — and GOP obstructionism — that allowed Republican presidents to choose six of the current nine justices, in a country in which more people identify as Democrats than as Republicans and in which Democratic presidential candidates have won the popular vote in seven of the last eight elections.

This proposal would do nothing to alleviate the current imbalance. Progressives had been pushing Biden to instead propose four additional seats on the court to undo the current uber-conservative hammerlock. The Constitution permits such an expansion, but the history of FDR’s court packing plan and similar efforts obviously persuaded Biden that the approach would freight the package with political controversy and long odds that would diminish the clean appeal of the rest of the provisions.

As for the court, today’s proposals only reinforce the grave loss of confidence it has brought on with its own overreaching. As a matter of raw power, it can continue on its path and remain oblivious to its many self-inflicted wounds. But Supreme Court history teaches that whatever its recognized authority in individual cases, it is untenable for it to operate indefinitely so against the grain of the American people.

As Alito said in an overheard comment, “one side or the other is going to win.”

Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman

Politics

How the Current Supreme Court Would Look Under Biden’s Term-Limit Plan

Published

2 hours ago

July 29, 2024

Press Room

How the Current Supreme Court Would Look Under Biden’s Term-Limit Plan

President Biden proposed major changes to the Supreme Court on Monday, including 18-year term limits for justices and a binding code of conduct.

Under Mr. Biden’s term-limit plan, presidents would appoint a new Supreme Court justice every two years. If that rule had already been in effect over the past two decades and each justice had served the full 18-year term, the court’s ideological split would be flipped, as this chart shows.

The Supreme Court now includes six conservative justices, appointed by former Presidents Donald J. Trump, George W. Bush and George H.W. Bush, as well as three liberal ones, appointed by Mr. Biden and former President Barack Obama. Three of the justices, all conservatives, have served longer than 18 years: Chief Justice John G. Roberts, Jr. and Justices Samuel A. Alito Jr. and Clarence Thomas.

If term limits had allowed the president to choose a justice every two years during the most recent four administrations, those numbers would be reversed: Six justices would have been appointed by Democratic presidents, and three by Republicans.

Mr. Biden also proposed a constitutional amendment in opposition to the court’s decision this month that presidents are entitled to substantial immunity from criminal prosecution. His three plans are unlikely to come to fruition soon. The overhaul would require congressional approval, which is not expected to come from a Republican-controlled House and a divided Senate.

Politics

Flashback: Harris compared ICE to KKK, said images of Border Patrol agents ‘evoked slavery’

Published

2 hours ago

July 29, 2024

Press Room

Flashback: Harris compared ICE to KKK, said images of Border Patrol agents ‘evoked slavery’

Vice President Harris, both as senator and vice president, has caused controversy with Homeland Security agencies, comparing one to the Ku Klux Klan (KKK), and fueling a since-discredited narrative about Border Patrol agents on horseback allegedly whipping migrants.

ICE and KKK

At a November 2018 confirmation hearing, then-Sen. Harris asked Ronald Vitiello, who was former President Trump’s nominee to lead Immigration and Customs Enforcement (ICE), if he was “aware of the perception” of parallels between ICE and the KKK.

Harris had highlighted a tweet from Vitiello from 2015 in which he said the Democratic Party was comparable to a “neo-Klanist” entity. Vitiello apologized and admitted that those words were offensive.

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Vice President Harris (Leigh Vogel/Abaca/Bloomberg via Getty Images/File)

“What is the history that would then make those words wrong?” Harris asked, to which Vitiello said the KKK would be labeled as a domestic terrorist group by today’s standards and was motivated by race and ethnicity and tried to use “fear and force.”

“Are you aware of the perception of many about how the power and the discretion at ICE is being used to enforce the laws and do you see any parallels?” she asked.

Vitiello pushed back by saying, “I do not see any parallels” between the agency and the white supremacist group, and he asked whether she was asking him if the two were in the same category.

“No, I’m very specific about what I’m asking you. Are you aware of a perception that the way that they …” Harris went on before the nominee said, “I see none.”

“Are you aware that there is a perception that ICE is administering its power in a way that is causing fear and intimidation, particularly among immigrants and specifically among immigrants coming from Mexico and Central America?” she asked again.

Harris ended her questioning by asking whether Vitiello could lead the agency if he was not aware of the negative views toward it.

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“Sir, how can you be the head of an agency and be unaware of how your agency is perceived by certain communities?” she asked.

That sparked outrage at the time, with Republicans accusing her of making the comparison for political purposes.

“Kamala Harris is trying to launch her 2020 campaign off of comparing ICE officers to the KKK, and it’s absolutely disgusting,” then-Republican National Committee Chair Ronna McDaniel tweeted.

Border Patrol agents on horseback

Three years later, in 2021, Harris upset Border Patrol agents when she helped fuel a narrative about horseback agents who encountered migrants during the Haitian migrant surge in Del Rio, Texas.

Based on images of agents using their reins to control their horses, some Democrats, including President Biden, accused agents of whipping migrants. Harris did not explicitly mention whipping, but she did pile the pressure on the agents.

“What I saw depicted about those individuals on horseback treating human beings the way they were was horrible,” Harris told reporters. “And I fully support what is happening right now, which is a thorough investigation into exactly what is going on there. But human beings should never be treated that way. And I’m deeply troubled about it. And I’ll also be talking to [Homeland Security] Secretary [Alejandro] Mayorkas about it today.”

Her statement coincided with statements by Biden who promised “they will pay.” Days later, Harris said the images evoked slavery.

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Two border patrol agents riding on horses push back a group of Haitian migrants

Customs and Border Protection mounted officers attempt to contain migrants as they cross the Rio Grande from Ciudad Acuña, Mexico, into Del Rio, Texas, on Sept. 19, 2021. (AP Photo/Felix Marquez)

“Human beings should not be treated that way,” Harris told “The View” hosts. “It also invoked images of some of the worst moments of our history, where that kind of behavior has been used against the Indigenous people of our country, it has been used against African Americans during times of slavery.”

A subsequent investigation faulted the agents for minor infractions but found the underlying claims that migrants were whipped were not true. Mayorkas, who had criticized the agents, would later go on to defend them last year when a reporter would cite the incident.

“Well, let me just correct you right there because actually the investigation concluded that the whipping did not occur,” he said.

The comments from Harris also sparked outrage from Border Patrol agents at the time, who spoke to Fox News.

“Again, it is clear that those in charge, a term that is disgusting to use, have no clue about our operations and frankly operate by ignorance and unhinged emotions,” one said.

Harris, however, has not backed down from her remarks on either incident.

“The only ‘plan’ Donald Trump has to secure our border is ripping mothers from their children and a few xenophobic placards at the Republican National Convention,” Harris campaign spokesperson Kevin Munoz said in a statement on Monday. “He tanked the bipartisan border security deal because, for Donald Trump, this has never been about solutions just running on a problem. Like everything with Donald Trump, it’s never been about helping the country, it’s only about helping himself. There’s only one candidate in this race who will fight for bipartisan solutions to strengthen border security, and that’s Vice President Harris.”

Immigration will likely be a top priority for Harris if she is elected president, given the ongoing situation at the border. She was tasked with heading international diplomacy to deal with the migration crisis in 2021, which led to her being dubbed the “border czar” by Republicans and media outlets. Her campaign has said that, if elected, she will fight for solutions to strengthen the border. It has also taken aim at signs calling for mass deportations at the recent GOP convention.

Adam Shaw is a politics reporter for Fox News Digital, primarily covering immigration and border security.

He can be reached at adam.shaw2@fox.com or on Twitter.

Politics

Elon Musk blasts Google over omission of Trump assassination search suggestions

Published

9 hours ago

July 29, 2024

Press Room

Elon Musk blasts Google over omission of Trump assassination search suggestions

Billionaire Elon Musk suggested that Google’s omission of search functions for the assassination attempt against former President Trump may be improper.

Musk took to social media to highlight that Google Search’s autocomplete feature omitted results relating to the July 13 shooting. Google has denied taking any action to limit the results.

“Wow, Google has a search ban on President Donald Trump.” Musk wrote. “Election interference?”

“They’re getting themselves into a lot of trouble if they interfere with the election,” he wrote in a follow-up post.

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A Google spokesperson told FOX Business that there was no “manual action taken on these predictions.”

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“Our systems have protections against Autocomplete predictions associated with political violence, which were working as intended prior to this horrific event occurring,” the spokesperson wrote. “We’re working on improvements to ensure our systems are more up to date.”

Billionaire Elon Musk suggested that Google’s alleged censoring of search functions for the assassination attempt against former President Trump may be “election interference.” (Apu Gomes/Getty Images)

Screenshots from Google showed recommended search results of the failed assassination of former President Reagan and the assassination of Archduke Ferdinand, whose death sparked World War I, the shooting of Bob Marley and the failed attempt on former President Ford.

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Even the keywords “Trump assassination attempt” yielded no additional terms from Google, according to users.

Donald Trump arrives to speak during the Republican National Convention

“Big Tech is trying to interfere in the election AGAIN to help Kamala Harris,” Donald Trump Jr. wrote on X. “We all know this is intentional election interference from Google. Truly despicable.”

Google’s spokesperson went on to say the autocomplete feature is “just a tool to help people save time” and they can still search for anything they want.

“Following this terrible act, people turned to Google to find high quality information – we connected them with helpful results, and will continue to do so,” the company said.

Fox News’ Louis Casiano contributed to this report.

Anders Hagstrom is a reporter with Fox News Digital covering national politics and major breaking news events. Send tips to Anders.Hagstrom@Fox.com, or on Twitter: @Hagstrom_Anders.