Carolyn Kaster/AP Photo
Then-Sen. Kamala Harris (D-CA), joined by fellow lawmakers, speaks to the media about the Senate Judiciary Committee hearing on Supreme Court nominee Brett Kavanaugh, September 28, 2018, on Capitol Hill in Washington.
President Joe Biden has laid down a marker for what we can expect from presumptive Democratic presidential nominee Kamala Harris on the issue of Supreme Court reform.
The vice president has predictably backed Biden’s recently announced proposals to put in place term limits and binding, enforceable ethics rules for U.S. Supreme Court justices, as well as a constitutional amendment to reverse their ruling that granted blanket legal immunity to presidents last month.
It remains to be seen whether Harris will go further as a presidential candidate, considering her more liberal record and previous statements expressing openness to bolder, more meaningful reform ideas, like adding more seats to the Court. Additionally, Democrats are now even more receptive to the idea of expanding the Court, and some, like Sen. Elizabeth Warren (D-MA), have said outright that “the Supreme Court is on the ballot” in November’s presidential election.
Harris held her first official campaign rally since Biden’s announcement in Atlanta on Tuesday. She made new campaign promises—like addressing price-gouging—but didn’t lay out anything specific regarding further changes to the Court.
That said, Harris has already made an argument for more meaningful institutional Court reform than Biden during her term as a senator from California. She has laid out a more forceful case for institutional reform than perhaps any other recent presidential candidate, focused on what she and other Democrats described as “illegitimate” appointments and alleged conflicts of interest in hugely important and still pending matters, especially the question of whether and to what extent former President Donald Trump is immune from prosecution for numerous charged crimes. Those arguments by former Sen. Harris point almost inevitably to more impactful institutional reforms, even though Harris the presidential candidate hasn’t yet called for them.
The case for some manner of reform to how the Court operates and to its membership is virtually indisputable, by now. Yet Biden’s proposals are mostly a last-minute act of legacy-building, an eventual concession to the need for institutional reform by a politician who has aged out of office, and who held entirely conservative positions against reform until his very last minute.
Biden refused to endorse Court reforms, even as justices practically flaunted their violations of ethics rules and issued more and more rulings that were obviously based on their partisan loyalties, not to mention being antithetical to his party’s platform and his own agenda. He rejected the idea of Court expansion even as it gained favor within his party, and proposed a commission to study potential reforms whose membership made it clear from the outset that his administration would totally overlook that more meaningful reform option.
Biden’s proposal for an ethics code is common sense. Ethics legislation could be opposed by congressional Republicans, or overturned by the justices themselves, but touting the proposal and compelling conservatives to continue publicly and cravenly rejecting rules against corruption seems like perhaps the only move on that end. The call for a constitutional amendment to overturn presidential immunity requires approval from three-quarters of the states, which means we can expect opposition from Republicans.
President Biden refused to endorse Court reforms, even as justices practically flaunted their violations of ethics rules.
As to the term limit proposal, some commentators have argued that such a measure would also require a constitutional amendment, due to language providing that justices “shall hold their offices during good behavior.” However, others have also argued that term limits don’t offend the Constitution so long as the justices have the option to continue working as a judge (perhaps on other courts) after their proposed 18-year term expires, including a number of legal academics and experts who were on Biden’s commission or provided testimony to it.
Still, Biden’s current proposals would only have modest effects on the central problems of the Court: its unjustifiably partisan decision-making and often-incoherent “legal reasoning.”
Biden’s proposal for term limits is middling enough that it has previously enjoyed bipartisan support, even from ultraconservatives like former Republican governor of Texas Rick Perry, Vox reported on Monday. A system where presidents appoint a justice every two years, with 18-year terms, wouldn’t immediately disempower this Court’s current 6-3 right-wing supermajority, which includes justices confirmed in 2017, 2018, and 2020.
At any rate, it’s important to remember that the U.S. is the only modern constitutional democracy whose highest court has members who hold their seats for life, like kings; aren’t subject to any rules (as a practical matter), like kings; and whose president has blanket immunity, like kings.
Harris has said that she was open to a conversation about expanding the Court while she was a presidential candidate in 2019. She voted against each of former President Donald Trump’s nominees to the Court. And she has taken a more forceful tone about the need for reform during her vice presidency than Biden has as president, or even while he was still the nominee for this year’s election.
Harris didn’t just vote against confirming Trump’s nominees; she argued forcefully that the administration’s nomination process itself was impermissibly tainted and illegitimate, and that the ties between the conservative movement and the three nominees—not just their well-known conservative ideologies—were effectively disqualifying.
The Senate began considering the first Trump nominee, Justice Neil Gorsuch, in March 2017, when Harris had barely taken her seat. She didn’t attend the hearings because she was not yet a member of the Senate Judiciary Committee, although she did quickly oppose his nomination after Trump made the announcement, as did many leading Democrats.
She commented publicly afterward that Gorsuch had “refused to answer the most basic of questions,” and said she believed his “narrow approach” to interpreting law “would do real harm to real people—especially the women of America.” Years later, after Gorsuch joined the opinion that overturned women’s right to abortion, Harris commented that she had “never believed” he or the other Trump nominees when they suggested or offered assurances to senators that Roe v. Wade couldn’t be easily overturned.
Of course, a justice joining a decision that causes harm to the public isn’t necessarily disqualifying. But Harris’s opposition grew louder in the hearings for the other nominees, and after joining the Judiciary Committee she had the opportunity to question them. In so doing, she began objecting to the very fact of their nominations, most notably during Justice Brett Kavanaugh’s confirmation hearings in September 2018.
At the start of her remarks, Harris immediately described Kavanaugh as a loyal soldier of the conservative movement, and began suggesting that he might have a conflict of interest as a justice because he had met secretly with Trump’s lawyers and was selected due to his then well-known views that presidents should be exempt from prosecution.
“Less than two weeks ago, [President Trump’s] personal lawyer and campaign chairman were each found guilty or pleaded guilty to eight felonies,” Harris said during the confirmation hearing. “The president’s personal lawyer under oath declared that the president directed him to commit a Federal crime, yet, that same president is racing to appoint to a lifetime position on the highest court in our land, a court that very well may decide his legal fate.”
She added that Kavanaugh’s guiding philosophy is even worse than ideology, saying that he believes in outright partisanship. “This nominee has devoted his entire career to a conservative Republican agenda,” Harris said. “And, in all of these efforts, he has shown that he seeks to win at all [costs], even if that means pushing the envelope.”
Harris had multiple, pointed exchanges with Kavanaugh during which she said she had received “reliable information” showing that Kavanaugh had discussed ongoing Justice Department investigations of Trump with lawyers who had represented the former president.
Kavanaugh repeatedly dodged the question and never provided a clear, direct answer. Trump’s former lawyer, Marc Kasowitz, did offer a direct denial some days later, but Kasowitz’s own credibility can reasonably be questioned in these circumstances, given his own spotty public record as an advocate.
Of course, Kavanaugh has since joined the universally panned ruling that granted Trump and other presidents near-absolute immunity.
Harris also joined a handful of other Democrats in a walkout after Republicans rejected efforts to thoroughly investigate credible allegations against Kavanaugh of rape, and ultimately confirmed him without ever fully resolving the issue.
The U.S. is the only modern constitutional democracy whose highest court has members who hold their seats for life.
In addition, Harris protested the fact that the Trump administration blocked the release of hundreds of thousands of pages of records from Kavanaugh’s work, including when he was a White House lawyer.
“Ninety-six percent of his record is missing,” Harris said, adding that a nominee should prefer a hearing that isn’t “shrouded by uncertainty, and suspicion, and concealment, and doubt.”
“We should not be moving forward with this hearing,” she said. “The American people deserve better than this.”
Harris was similarly strident in arguing that the nomination of Justice Amy Coney Barrett was also improper.
Barrett was confirmed in the midst of a deadly, highly contagious pandemic. Her confirmation was closer to a presidential election than any other Supreme Court justice in U.S. history, and she is the lone justice to be confirmed with no support from the minority party in at least 150 years.
While many of the other Democratic senators focused on Barrett’s legal ideology, Harris instead homed in on the hypocrisy inherent in Republicans moving to confirm nominees during an election year, after blocking the confirmation of a Democratic nominee in 2016 on the basis that the appointment happened too close to an election.
And she didn’t mince words.
“More than nine million Americans have already voted and millions more will vote while this illegitimate committee process is under way,” Harris said early in the process.
On the final day, she commented that “this hearing has done nothing to alleviate the concerns raised about why this nominee was chosen and why this is being rushed.” My colleagues are doing “great harm with this illegitimate process, and if they are successful it has the potential to do great damage” to Americans and to the Supreme Court itself, Harris said.
As things stand, roughly four years later, the damage has indeed been done. That applies both in terms of rulings that have taken rights away from women and Black and LGBTQ people, as Sen. Harris feared, but also to the Court’s own reputation.
We’ve now had the conversation about expanding the Court that Harris said she was “open to” back in 2019—and many more of her Democratic colleagues are on board with Court expansion, as is a much larger proportion of the public. Critically, expansion could be enacted by Congress, as it has done several times in its past.
So then, what should a presidential nominee do if she believes that a Court has multiple sitting lifetime appointees who were selected and confirmed through a fundamentally illegitimate process, who have potentially ongoing conflicts of interest and credible, yet-unresolved allegations of criminality and rape, and who continue to rule in an unjustifiably partisan fashion because they are essentially above the law?
The answer would seem obvious, but we’re still waiting.
