McConnell’s hands are in the court-reform cookie jar

Citing Founding Fathers’ statements that established lifelong tenure for justices does not eliminate the potential need to reexamine this policy more than 200 years later, when such tenure no longer provides independence — but immunity. The citations he used to support his argument are a debater’s ruse, as they contained mere mentions of lifelong tenure without any indication of why it is the bedrock of an independent judiciary.

Setting term limits for the Supreme Court does not undermine its independence. Justices can continue to use their knowledge, life experiences and consciences to determine their position on cases that come before them. The same limited means to constrain their actions will remain in place. What it would do is make justices aware that their time on the court is finite, not forever, and their impact on the lives of U.S. citizens has a “best used by” date.

Jeff Oltchick, Bradenton, Fla.

Sen. Mitch McConnell facilitated the theft of two Supreme Court appointments from Democratic presidents. Both his hands were blatantly shoved in the court cookie jar (the only decent analogy I can think of) — yet he argues about the independence of the cookie jar?

Independence as an issue doesn’t even approach the front door, much less get inside when the door is locked, blocked and manipulated by dishonest actors. Mr. McConnell has great nerve writing with a straight face about defending the independence of the high court.

Lyndon Dodds, San Antonio

Sen. Mitch McConnell argued that judicial independence would end if a constitutional amendment were to overturn Trump v. United States. Yet five previous constitutional amendments overturned previous Supreme Court decisions without impairing judicial independence: 11th, 14th, 16th, 19th and 26th.

Mr. McConnell also harrumphed: “History tells us that presidents rightly enjoy immunity for official acts.” But he maintained the opposite on Feb. 13, 2021, in explaining his vote against convicting former president Donald Trump at his second impeachment trial: “We have a criminal justice system. …We have civil litigation. And former presidents are not immune from being held accountable by either one.”

Further, as assistant attorney general in the Justice Department in 1975, Mr. McConnell knew that President Gerald Ford pardoned former president Richard Nixon precisely because he faced prosecution for Watergate actions he took from the White House.

Bruce Fein, Washington

Let’s not get constitutional

In response to President Biden’s July 30 op-ed, “My plan to reform the Supreme Court and ensure no president is above the law”:

During his 36 years as a senator, eight years as vice president and nearly four years as president, Mr. Biden never proposed any “reforms” to the Supreme Court. Now, just before the end of his term, he has seen the light and suggested a series of radical changes that would undermine the independence of the one branch of government that is supposed to be apolitical.

Why? Because the Democratic base is upset with some court decisions. Mr. Biden is feeding that discontent and catering to Democrats’ rallying cry.

Let’s consider his three proposed reforms:

First, a constitutional amendment to overturn the court’s decision in Trump v. United States. Although Mr. Biden claimed the court granted absolute immunity to former presidents, it did no such thing. The court held presidents get no immunity for unofficial acts and only presumptive immunity — which can be overcome — for the vast majority of official acts they undertake. This proposal may send a message to Mr. Biden’s constituency, but the amendment has no realistic chance of becoming part of our Constitution.

Second, term limits for justices. This solution-in-search-of-a-problem will also require a constitutional amendment, because federal judges receive life tenure unless impeached. And anyone who thinks that having more frequent Supreme Court confirmations will depoliticize the process is delusional.

Finally, an enforceable judicial ethics code for Supreme Court justices. While attacking Justices Clarence Thomas and Samuel A. Alito Jr., neither Mr. Biden nor anyone else on the left cried foul when Justices Ruth Bader Ginsburg and Stephen G. Breyer reported trips paid for by wealthy friends, one of which Ms. Ginsburg took eight months after a court ruling in her benefactor’s favor. Further, since the Constitution (not Congress) created the Supreme Court, Congress has only limited authority to impose rules. Indeed, Congress has no more right to impose an enforceable ethics code on the Supreme Court than the Supreme Court has to impose such a code on Congress. Any enforcement process would undoubtedly result in a stream of baseless charges designed to intimidate the Republican appointees.

These proposals should be seen for what they are: a blatant move to energize Mr. Biden’s supporters and attack the independence of the Supreme Court.

John G. Malcolm, Washington

The writer is vice president of the Institute for Constitutional Government at the Heritage Foundation.

President Biden has called for a constitutional amendment overturning the Supreme Court decision granting presidential immunity, a proposal that is unlikely to succeed. However, there is a way to undo the decision that requires only majorities in both houses of Congress and the presidency: court-packing.

The idea is neither as radical nor as dangerous as opponents would suggest. In fact, the current number of justices — nine — was set in 1869 by President Ulysses S. Grant as a way to pack the court.

In 1866, there were 10 justices with one vacancy. To deny President Andrew Johnson’s nominee, Congress lowered the number of justices to seven. Once Grant was in power, Congress expanded the Supreme Court to nine in 1869. At the time, the country had begun adopting paper money. In a decision that would have crippled the U.S. economy had it been left to stand, the court ruled 4-3 that paper money was not legal tender. Armed with two vacant Supreme Court seats, Grant nominated two new justices the very day the court’s decision was announced. A year later, in a 5-4 ruling, the Supreme Court reversed its previous decision and saved paper money.

There are two lessons here. First, judicious use of court-packing can save America from a particularly disastrous ruling. Second, this did not cause ruinous tit-for-tat court expansion.

Opponents argue that court-packing would break the court system. They ignore the fact that the system has already been broken. By denying President Barack Obama’s nominee, Sen. Mitch McConnell already set the precedent that vacancies can be filled only by a friendly Senate. At least packing the court requires majorities in both houses.

Mr. Biden’s call for a constitutional amendment is good, but the Supreme Court’s rulings are as threatening to America as invalidating paper money was in 1870. A more immediate response is needed. Democrats should not shy away from packing the court to fix our broken system.

Noam Reisner, Washington

Ethics matter

I applaud President Biden’s proposal to reform the nation’s highest court. If lower-court judges need to adhere to ethical standards, the Supreme Court justices should as well. There should be no exceptions in this country to holding politicians and judges to the highest accountability standards. While it will likely take a future Congress to turn Mr. Biden’s proposal into meaningful change, a start in the right direction is still a start.

LaVaughn Jones, Dover, Del.

So does historical context

Sen. Mitch McConnell’s argument for rejecting the proposal to change the constitutionally defined “life tenure” of appointments to the Supreme Court was based on words written by Alexander Hamilton in 1778. The rest of Mr. McConnell’s argument showed how political the court’s opinions appear to be.

Mr. McConnell claimed that decades of court opinions supported the political left. Now, they support the political right, and that apparent shift is the primary reason for President Biden’s proposal to nix life tenure. In fact, Mr. McConnell’s analysis showed that life tenure has not done what Hamilton hoped: create a politically independent court.

Today, life tenure means something very different than it did in Hamilton’s day. Life expectancy has essentially doubled. During the 18th century, justices served an average term of nine years, and the longest term was 20 years. During the 21st century, current members of the court excluded, justices served for an average tenure of 26 years, while the shortest term was 18 years.

Justices are appointed by presidents and affirmed by senators, both of whom hold political points of view and are elected in a political process. Whatever we can do to see that the justices do not depend on the ongoing approval of the political branches of government will serve Hamilton’s goal better than life tenure has.

Jane Twitmyer, Nellysford, Va.