The Court vs Phone and Pen

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Joe Biden’s administration will not be able to overcome one truth in Washington: Tweets come and go, but judges last a lifetime.

As Joe Biden rapidly continues to fill his administration, Kimberley Strassel notes two trends:

1. It’s All About Green
Climate will be the driving priority of this White House—Mr. Biden’s make-nice to progressives. He’ll have a climate envoy (John Kerry), a climate czar (Gina McCarthy), and climate obsessives leading every department (Janet Yellen, Pete Buttigieg, Jennifer Granholm).

2. A Growing Collection of Obama Retreads
Joe intends to enact an Obama-style agenda – that is, by “pen and phone.”

Next year, Ms. Strassel stresses in the WSJ, will be a very different year than the Obama years, in one key regard—or rather, in 233 regards.

That’s the number (233) of judges Mitch McConnell’s Senate has so far confirmed over the past four years, and Donald Trump’s most enduring legacy.

Team Biden will struggle to replicate the Obama regulatory machine “because much of what they want to do will be well beyond any statutory or constitutional authority, and what we have now are a number of judges attuned to those issues and unafraid to hold the executive branch accountable,” says Don McGahn, Mr. Trump’s first White House counsel.

Mr. McGahn would know, since he helped vet many of those judges, with a clear eye to the future. While flashpoint cultural issues still dominate confirmation hearings, veterans of the judicial wars understand that what matters increasingly in the era of big government is a judge’s views on administrative law. Especially with Democratic White Houses that ignore Congress, enact sweeping rules through agencies, and rely on courts to sign off on this power grab.

… the GOP will have no time for bills that crush the economy with an anti-carbon program, or impose a health-insurance public option, or abolish right-to-work states. Even a narrow Democratic Senate majority might struggle to get such controversial legislation over the finish line.

That’s why the Biden administration is already gearing up to rule by executive order and regulation.

Trump understood his legacy would depend on not only the number of judges he appointed, but also the quality of those judges.

The conservative legal field has seen a generational shift. The jurists of yesteryear tended to be deferential to executive power, having come up through the Beltway system at a time when Republicans dominated the presidency and Democrats usually controlled Congress.

The new generation, including most Trump appointees, is more likely to have been plucked from outside Washington and is used to GOP legislative majorities. This crowd is intellectually skeptical of concentrated government power, more willing to look at legislative intent, and unafraid of offending Washington’s mandarins.