Power Grab - Jason Chaffetz Page 0,88

of their reach for a generation. They themselves weakened the check on judiciary appointments during the Obama administration when Senate Majority Leader Harry Reid got rid of the sixty-vote requirement on most nominees in 2013. This paved the way for Republicans to apply that same threshold to Supreme Court nominees.

Now, with the possibility of a third Trump appointment to the Court, Democrats are considering changing the process to favor their party in the short term.

Presidential hopefuls Kamala Harris, Elizabeth Warren, and Kirsten Gillibrand have all acknowledged they would consider sweeping changes to the Supreme Court to offset the conservative majority. Beto O’Rourke and Pete Buttigieg have also signaled possible support for expanding the court to neutralize conservative justices. Warren calls it “depoliticizing” the Supreme Court. Kamala Harris suggested, “We are on the verge of a crisis of confidence in the Supreme Court.”

For their part, progressive nonprofit activist groups are all in for packing the courts. Ezra Levin, cofounder of Indivisible, told Politico: “Any Democratic presidential candidate who is serious about implementing a progressive agenda has to seriously consider appointing new justices to unpack the courts.” Wow. How did the courts get “packed” in the first place? Apparently because the Republican Senate refused to hold a confirmation vote on an Obama appointee (Judge Merrick Garland) in 2016. Advocacy groups like to pretend that Garland was denied the seat. In reality, he was merely denied a vote. To be sure, it was a norm-breaking move for Senate majority leader Mitch McConnell, but not one that changed the balance of power on the Court. Democrats never had the votes to confirm Garland.

The fact is, every Supreme Court justice now sitting on the bench got there through a legitimate confirmation process. To imply that the courts are “packed” and that there is a “crisis of confidence” merely because conservatives hold a slight majority on the Court is a level of hyperbole even Donald Trump can appreciate.

Fortunately, not every Democrat in the Senate is on board with the court-packing plan. Senator Jon Tester told Politico, “It’s like changing the rules of the Senate. I think it’s a mistake. Probably the biggest mistake I ever made was voting on the rule change on judges.” I agree with Tester. Anytime we mess with long-standing institutions, we risk undermining our own stability. Changing the process or the size of the Court to suit short-term partisan goals is a bad precedent to set. As this process has already shown, any advantage to one party can eventually be used to favor the other. Better to reach bipartisan consensus on any major structural changes that affect checks and balances between the branches of government.

A check on Congress that could use some shoring up relates to oversight responsibilities. In my book The Deep State I wrote extensively about the changes I believe need to be made on that front and the subversive powers that fight against them. But suffice it to say that the boundaries of congressional authority as set in Supreme Court precedent in Watkins v. U.S. need to be codified and enforced. The case found that oversight investigations could not have an unlimited scope, but must “be related to and in furtherance of a legitimate task of Congress.” That is still a broad mandate to oversee government, but it restricts oversight from interfering in individual lives or private markets.

Congressional oversight, even partisan-driven oversight, can be effective when used to inform legislation and check executive branch expenditures. Using oversight authority in that way helps maintain credibility and improve outcomes. Unfortunately, the oversight function has lost a lot of credibility even just in the short time since I’ve been gone from Congress. Intelligence Committee chairman Adam Schiff arguably abused his authority by trading on the credibility of his security clearance to spread misinformation. That same Representative Schiff, upon first being appointed to the Intelligence Committee, thought differently of the committee’s role.

It’s the least partisan and probably the most productive of all the committees on the hill. That’s in large part because the meetings are in closed session due to the classified information. There’s no grandstanding because there is no one to grandstand to. We get our work done and don’t use each issue to bash each other.

A return to those values would certainly help. Schiff’s own efforts to politicize the committee, misrepresent classified information, and prejudge the outcome of investigations may have provided some short-term advantages for the 2018 midterms, but the long-term implications weaken his leadership and his committee’s credibility. Speaker