Biden, Congress should remake the judicial branch. Here’s how | Fletcher McClellan

Public trust in the judiciary has dipped precipitously in recent years. It’s time to fix that

November 23, 2022 6:30 am

It’s been a year since an early draft of the Dobbs decision was leaked, a precursor to the U.S. Supreme Court decision in June that overturned the federal right to abortion. (Getty Images)

After a week of following election returns, we finally know the shape of President Joe Biden’s relations with the 118th Congress

In 2023-24 the president will face a U.S. House of Representatives narrowly controlled by the Republicans and a U.S. Senate narrowly controlled by his party.

Judging from their own statements, not only will House Republicans attempt to block Biden’s legislative agenda, they will commence investigations and conduct possible impeachment hearings of Biden and his administration. 

Hunter Biden, the president’s son – who was never in the Biden government or the president’s election campaign – will be among those targeted.

While intense partisan combat will characterize Biden’s relations with the House, the president may possibly work with a friendlier Democratic Senate than the one he is working with now. 

If the betting favorite, Democratic U.S. Sen. Raphael Warnock, is re-elected over Republican challenger Herschel Walker in the Georgia runoff on Dec. 6, Democrats will hold a 51-49 Senate majority, a one-seat gain (thanks to Pennsylvania) over the present 50-50 split.

How much difference would one vote make for Biden and the Democrats? A lot. 

At 51-49, Democrats can form majorities on all Senate committees. Legislative proposals and executive branch nominations will move more quickly. Bills coming from House Republicans will hit a brick wall.

One additional vote offers a margin of safety should a Democratic senator leave office or the party for whatever reason during the next two years. It may help marginalize party dissenters such as U.S. Sens. Joe Manchin, D-W.Va., and Kirsten Sinema, D-Ariz..

Most importantly, Biden’s nominees for federal judgeships, including the U.S. Supreme Court if a vacancy arises, will have a good chance of sailing through

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Though Republicans have enough senators to filibuster legislation, Senate rules adopted when the GOP was in the majority in 2017 prevent them from blocking judicial nominations. 

President Trump and then-Senate Majority Leader Mitch McConnell, R-Ky., took full advantage, nominating and confirming three Supreme Court justices and over one-quarter of all federal judges when Trump left office in January 2021.

Despite the improved odds for lower federal judge appointments, the president will need more than the luck of the Irish to dent the conservative 6-to-3 majority on the U.S. Supreme Court. Actuarily speaking, the oldest Republican justices are in their early-to-mid 70s and the three Trump appointees are in their 50s.

Next to inflation, the biggest concern midterm voters expressed was the direction of the Supreme Court. Without the Court’s decision in Dobbs v. Jackson Women’s Health Organization several months ago that unraveled abortion rights, the much-hyped Republican “red wave” would almost certainly have materialized. 

The opinions by the Dobbs majority, particularly one by Justice Clarence Thomas, fueled anxiety that conservatives on the Court may go after precedents related to Roe v Wade, such as Obergefell v Hodges, the 2015 ruling establishing a right to marriage for same-sex couples.

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Reflecting those concerns, the U.S. Senate will vote to codify same-sex marriage this week.

In addition to curtailing reproductive freedom, the conservative majority has already or likely will put an end to affirmative action in higher education, weaken the separation of church and state, and narrow government efforts to combat climate change.

Most recently, the Biden administration wants the Court to overrule injunctions by Trump judges blocking student debt relief, which 26 million people have applied to receive.

Fat chance that will happen.

As if partisan and ideological groupthink wasn’t enough to condemn the conservatives on the Court, evidence of corruption has surfaced.

Last spring, the draft opinion of Dobbs, written by Justice Samuel Alito, was leaked to the public, an “egregious” violation of Supreme Court decision-making rules.

Now, a former anti-abortion lobbyist has come forward, saying he received advance word of the 

Court’s ruling, favorable to religious fundamentalists, in the 2014 decision Burwell v Hobby Lobby Stores. The lobbyist, whose duties included wining and dining the justices, allegedly obtained the information at dinner with Alito, who wrote the majority opinion.

Presumably the new charges of influence peddling will be added to the months-long investigation of the Dobbs leak, ordered by Chief Justice John Roberts.

For the record, Justice Samuel Alito denies leaking the Hobby Lobby decision

If Alito was not the leaker of Hobby Lobby or Dobbs, the next likely suspect would be Justice Clarence Thomas, whose wife Ginny Thomas, a conservative political activist, allegedly communicated with participants in the January 6, 2021 insurrection at the U.S. Capitol. Thomas has refused to recuse himself from Jan. 6-related cases.

No wonder 60 percent of Americans polled say they disapprove of the job the Supreme Court is doing. Only 7 percent have a great deal of trust and confidence in the court, its lowest public standing on record.

Regardless of how relations between Biden and Congress unfold over the next two years, restoring the integrity of the judicial branch – by new judges, new ethical rules, or other means – must be at the top of their agenda.

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Fletcher McClellan
Fletcher McClellan

Opinion contributor Fletcher McClellan is a political science professor at Elizabethtown College in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may email him at [email protected], and follow him on Twitter at @mcclelef.