Schumer promises year-end judicial push as courts gain new political importance

WASHINGTON — Senate Democrats are planning a new push this fall to make overhauling the nation’s courts a marquee political issue, preparing to press for ethics restrictions on Supreme Court justices and the reversal of some rulings while sprinting to confirm dozens of President Joe Biden’s judicial nominees.

The campaign is a major reversal for Senate Democrats and Biden, who both resisted calls from progressives to embrace major changes to the courts early in the president’s term.

Now, Sen. Chuck Schumer, D-N.Y., the majority leader, argued that a string of recent disputed Supreme Court rulings and ethics questions — plus Biden’s new push for a court overhaul — have elevated the issue. The president’s decision to drop his reelection bid and the subsequent rally behind Vice President Kamala Harris, who has a background on judicial matters, as the party’s presumptive nominee have put even more urgency behind the effort.

“Making judicial reform, both ethically and substantively, is a much higher priority,” Schumer said in an interview as the Senate prepared to leave Washington for its August break and the Democratic convention in Chicago at the end of the month. “We’re going to look at everything.”

Schumer had already declared that he intended to explore legislative ways to reverse the court’s decision last month that granted presidential immunity for a range of official acts. On Thursday, he and about three dozen Democratic colleagues introduced what they called the No Kings Act, which would reaffirm that sitting presidents do not have immunity for violations of criminal law and remove the Supreme Court’s ability to review the constitutionality of the law.

Senate Democrats are also looking into whether they can impose term limits and ethical rules on the justices through statute rather than a constitutional amendment, an arduous pursuit that involves mustering supermajorities to pass in both chambers of Congress and ratification by three-quarters of the states.

But with Republicans solidly in opposition and time running out this year, they are unlikely to make real progress, meaning Democrats would have to hold the Senate in November and win the presidency to have any chance of making the court changes they seek. Schumer noted that Harris’ service on the Senate Judiciary Committee and her work as a prosecutor and attorney general in California has her particularly attuned to the need to make changes.

“Because of our Judiciary Committee, she got to see what happened,” Schumer said of Harris. “The Supreme Court is a morass — it’s an ethical morass.”

Any move by the Democrats to remake the court would be rejected by Republicans, who see Biden’s call for 18-year term limits and binding ethics enforcement as a power grab by Democrats who are unhappy with the decisions handed down by the conservative-dominated court.

“The way to change that is to win the presidency and the Senate and to appoint people that you like, but not to try to break the Supreme Court,” Sen. Mitch McConnell, R-Ky., the minority leader, said this week. He called proposals to fundamentally change the court “dead on arrival in Congress.”

One way Democrats could have impact on the federal bench this year is to continue to place judges nominated by Biden on the lower courts. With two more confirmations Wednesday, the Senate has approved 205 appellate and district court judges for lifetime appointments, leaving them 29 short of the 234 judges and justices confirmed during former President Donald Trump’s four years in office.

Democrats would like to match or exceed that number, but the effort has been complicated by the narrow divide in the Senate and the absence of Sen. Bob Menendez, D-N.J., who was convicted in a corruption trial and is resigning his seat this month.

At the same time, Sen. Joe Manchin III, I-W.Va., has said he would not back any nominee who lacks bipartisan support, making it difficult to ensure a majority for some. In addition, Harris is no longer as available to break ties in the Senate as she ramps up her presidential campaigning around the country.

But Schumer said Wednesday that he was still determined to see as many of Biden’s judicial nominees as possible placed on the bench before the end of the year and that the weeks after the election could provide a window for a heavy schedule of confirmations. Currently, just more than 30 nominees are in the pipeline, having either been nominated by the president and awaiting hearings before the Senate Judiciary Committee or awaiting floor votes, giving Democrats a chance of matching the overall Trump mark.

“Putting more judges in before Dec. 31, even though we think we’re going to win the election, is a very high priority,” Schumer said. “I’m going to do everything I can.”

Republicans are certain to try to slow that effort, and Schumer would also need buy-in from his Democratic colleagues to keep them in Washington for a grueling slog of votes on judges. In the past, the Senate had a tradition of suspending judicial confirmations in the run-up to and aftermath of a presidential election, but those days are gone.

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Russell R. Wheeler, a senior fellow at the Brookings Institution who closely tracks judicial nominations, said in a recent review that Biden had the opportunity to top all presidents except Jimmy Carter in terms of one-term judicial confirmations. But it would take a serious effort by Schumer to corral Democrats and hold off Republicans, he said.

“Biden’s four-year number of lower court judges will outrank all presidents but Carter — and possibly Trump,” Wheeler wrote in a recent report. “Whether he is second or third will depend on how often Senate leadership can assemble majority votes for confirmation in a tightly divided Senate.”

This article originally appeared in The New York Times.

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