On Abe Fortas and exploitations of the Court.
Many leaders of the Democratic Party are increasingly worried about President Biden’s low ratings among voters, fearing that he could lose next year’s election, even to former President Donald Trump. There is the option, now being considered in some quarters, of persuading the president to step aside so that he might be replaced at the top of the ticket with a younger and more engaging candidate. There is one unanswered question standing in the way of such a maneuver: What, then, is to be done with Vice President Kamala Harris, who is even less popular than President Biden, and a certain loser in the presidential election?
This means that Biden cannot step aside unless or until some sufficiently attractive position is found to induce the Vice President to resign. What might that be? Some have floated the possibility of creating a vacancy on the Supreme Court that she could fill via an appointment by President Biden. That would take her out of the line of succession, give her a lifetime appointment on an influential institution, and permit the President to appoint a new vice president. That person, whomever he or she might be, would then step in as the party’s fresh candidate for the 2024 presidential election.
That may appear to be an unrealistic option, since there are no current vacancies on the Court, and none likely to arise anytime soon. Is there some way to create a vacancy? There is a precedent for a maneuver of this kind in Lyndon Johnson’s Supreme Court machinations in the 1960s.
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James Piereson is a senior fellow at the Manhattan Institute.
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