At first glance, the choice of Eric Holder to head the president’s commission to consider appointment of a fifth justice to the US supreme court seems to suggest that Barack Obama is open to the idea of appointment of another liberal justice.
But in going after another left-leaning justice, Biden has almost certainly brought back to the scene of his 2008 White House defeat a nemesis that could keep the two-term president on the defensive.
This time, Biden’s main target may be Ruth Bader Ginsburg, who has recently let out a series of extraordinary criticisms against Donald Trump and his team in public speeches.
Some observers say she may want to be replaced by a more liberal justice, and her personal animosity to the Republican president could give him a ready supply of sympathetic grounds to put forward a new name if he chooses to.
Biden’s commission will be studying a number of options for the next supreme court vacancy, when Ginsburg, 79, undergoes chemotherapy for cancer, which was first diagnosed in May and has been associated with numerous cases of colon cancer in the past.
It will also investigate the possibility of filling the seat vacated by the death of Antonin Scalia in February this year, which was left open as the result of a Republican-led vote in the Senate to refuse to consider the nomination of Merrick Garland, who Obama had nominated to fill the vacancy.
Holder has written about eight tweets that he has posted over the past three months criticising Trump’s personal conduct, policies and leadership style. Most recently, he took aim at his boss’s stated attitude towards immigration as it relates to “dreamers”, young undocumented immigrants whose families have spent years pursuing a work permit, permission to stay and other protections from the deportation of deported persons.
“The President refuses to face the truth or take the consequences of his blatant and prejudicial disregard for the future well-being of 800,000 young people who were born in this country and serve in our military,” he tweeted.
Some legal experts have suggested that the commission could recommend that Donald Trump employ Ginsburg’s ideological foe as his pick to replace her. Hillary Clinton’s Democratic campaign is to propose a series of reforms to the court that it says are needed to counterbalance the influence of “extreme rightwing activists” who it says have shaped the way the court has taken up controversial cases.
Among the proposals it says are needed are retention elections for justices and a judicial selection commission that must consider the qualifications of candidates before they become court nominees.
This is one way of filling the vacancy of a left-leaning justice while avoiding controversial questions of judicial independence by appointing a successor who, perhaps, will be less prone to defend the jobless policy positions of Trump.
But Biden’s latest move suggests that the former vice-president may be preparing a separate attack on the court’s long-serving liberals, and may be thinking about adding even one more liberal to the court before he leaves office in January 2021.
The president of the American Civil Liberties Union (ACLU), Anthony Romero, has called the appointment of a fifth member of the court a “tremendous opportunity” and has joined a chorus of rights groups and Democrats in celebrating the commission’s decision to go public about the issue.
“This unprecedented process demonstrates the president’s commitment to conducting a national debate on our highest court and finding its most appropriate successor,” said Romero.