The courts should be Biden’s top priority for three reasons.
First, during Donald Trump’s first term in office, the Supreme Court served as a largely reliable bulwark against an out-of-control president. That is no longer the case. Trump vs. the United States The courts do not protect us. They facilitate the expansion of presidential power, not restrain it.
Trump and his lawyers have argued that a president cannot function without the assurance of immunity from prosecution after leaving office. In reality, for more than two centuries, presidents have operated with the understanding that criminal laws apply to their official duties and that they may be prosecuted after they leave office. A ruling to the contrary would not remove the threat to responsible presidents, but would instead encourage lawless presidents like Trump.
Second, the ruling underscores the importance of who wears the robe and who has the power to appoint them. Trump has nominated 234 judges out of 890 confirmed, including the three who ruled in his favor on Monday. Biden has nominated 201, and the Senate should prioritize confirmation of those outstanding nominees.
As we have painfully learned over the past few years, who sits on our lower federal courts matters greatly, and that matters more than ever as Supreme Court decisions, such as last week’s decision to eliminate deference to federal agencies, shift power to the judiciary.
A President Trump presidency would reinforce and extend this reality. On the Supreme Court, Justices Clarence Thomas and Samuel A. Alito Jr. will retire and likely be replaced by similarly conservative but younger thinkers. This conservative majority will endure for decades, well beyond a second Trump term. The damage done by the current supermajority will be entrenched and widened.
A few months ago I offered a short, likely and chilling, list of potential nominees for President Trump, and it’s worth repeating given the disastrous end to his term and Biden’s equally disastrous debate performance.
They include three justices on the ultra-conservative U.S. Court of Appeals for the Fifth Circuit: James Ho, a former clerk for Justice Thomas; Andrew Oldham, who clerked for Justice Alito; and Kyle Duncan, who was the target of student protests when he spoke at Stanford Law School. This court is so conservative that it has been repeatedly rebuked by the Supreme Court, including in three of the 10 appeals to its decisions this term.
Others on the shortlist include Amr Thapar of the 6th Circuit, who wrote a book praising Thomas last year; Elizabeth Branch of the 11th Circuit, who joined Ho in boycotting a clerkship at Yale Law School following student protests against a conservative speaker; Lawrence VanDyke, a vocal dissenter on the liberal-leaning 9th Circuit; and Patrick Bumathai, also of the 9th Circuit.
As I’ve written before, “They are not the Republican candidates of the George W. Bush era. By comparison, President Trump’s first-term candidates will often look moderate.”
Finally, Biden should heed the tragic lesson of Justice Ruth Bader Ginsburg, who refused a request to step down even though a Democratic president could have halted the current supermajority by nominating a replacement.
Ginsburg’s self-centeredness is an indelible stain on her illustrious record, and Biden needs to ask himself: Would he risk even more disaster? Is that how he wants to be remembered in history?
Of course, to answer that question, we need to draw a conclusion about whether Biden’s candidacy would make it more or less likely that the Democrats would keep the White House – or, more precisely, that they would be more or less likely to keep Trump out of it.
This is not an easy choice, but it may get a little easier in the coming days as additional polls on the impact of Biden’s debate performance are released and Biden embarks on a cleanup tour that includes an interview with ABC’s George Stephanopoulos.
The Democratic Party faces two dangerous paths. The path to Biden’s reelection was already dangerous even before the debate disaster. But the other path carries the great danger that the party will split over who will succeed Biden and that we will have a candidate who cannot win the presidential election in November. Perhaps, as I said, the polls will help.
Without further evidence, I reluctantly conclude that Biden should step aside. Before the debate, I believed the risks of replacing Biden outweighed the potential benefits. Now that calculation has been reversed. We cannot expect voters to forget what they witnessed or to dismiss it as a one-night stand.
And now the Supreme Court has significantly raised the stakes for Trump’s second term. “The president is now a king above the law,” Biden said, quoting the dissenting justices.
His greatest achievement will be doing what is necessary to save us from King Trump.
