The Capitol Riot Inquiry / Biden’s Court Commission – Opinion: Potomac Watch


This transcript was prepared by a transcription service. This version may not be in its final form and may be updated.

Speaker 1: From the opinion pages of The Wall Street Journal, this is Potomac Watch.

Kyle Peterson: Speaker Nancy Pelosi refuses to seat two Republicans on the Capitol riot inquiry committee, as President Biden’s Supreme Court commission holds its latest hearing.
Welcome, I’m Kyle Peterson with The Wall Street Journal. We’re joined today by my colleagues; WSJ columnist Kim Strassel and Bill McGurn.
There’s been a long running argument in Congress over how to investigate the riot at the U.S. Capitol on January 6th, and that argument is only getting more heated as we go along. House Speaker Pelosi has set up a bipartisan select committee, called “The select committee to investigate the January 6th attack”, and on Monday Republican leader, Kevin McCarthy, put forth his five picks for Republicans to sit on the committee. And shortly thereafter on Tuesday, Pelosi announced she had rejected two of those choices, Congressman Jim Banks and Congressman Jim Jordan.
And here’s what Pelosi said. “The unprecedented nature of January 6th demands this unprecedented decision.” So Kim, McCarthy has now responded by pulling all of the Republican choices and saying that the GOP will essentially boycott this committee. I mean, what’s going on here?

Kim Strassel: Well, and understandably so that he pulled them, because as even speaker Nancy Pelosi acknowledged, this was an unprecedented move by the Speaker of the House to tell the minority leader who they were allowed to have on a special commission.
I keep noting that the press has tried to justify the makeup of this committee, which was slanted from the beginning by pointing out that it was similar to the Republican Benghazi select committee. But never did Republican’s attempt to dictate who Speaker Pelosi picked for that Benghazi committee. So it’s a real slap in the face, especially because Kevin McCarthy was under a lot of pressure from the more conservative members of his conference to treat this committee, much as a partisan exercise it looks to be, and appoint a bunch of people that would essentially blow it up.
And instead, he chose a real nice mix from the conference. In addition to Banks and Jordan, there was also Rodney Davis, who’s a little bit more of a centrist in the party. From Illinois, kelly Armstrong, and Troy Nehls from Texas, who was actually one of the guys who helped barricade Congress when the riot was going on. And so, a wide range of views.
Her argument was that these guys said inappropriate things in the run-up to January 6th. In reality, they did object to some things, much as some Democrats objected to certifying electoral results when Donald Trump was elected. They are partisans, but she’s put her own partisans on the committee too. I mean, Adam Schiff’s going to be on this committee. So it’s pretty hard to sit there and say, “These guys are too extremist,” when you’ve got someone like Schiff who’s one of your picks.

Kyle Peterson: Yeah. I mean the justification for this, I found hard to understand. I mean, two of these guys, the two that Pelosi said no too, voted not to certify 2020 election results, but there was a third proposed committee member who also did, who Pelosi accepted.
And then Bill, I mean, as Kim points out, Jim Jordan might be a bomb thrower, but Adam Schiff is an inverse bomb thrower. So, it’s hard for me to make sense of what Pelosi’s justification here is.

Bill McGurn: Well, I think her justification is she wants a stacked commission and she doesn’t want any discordant notes on it. I don’t think she’s looking at this commission as an honest bipartisan effort to find out exactly what happened that day. I mean, there are a lot of things I’d like to know about that day, about who planned to be there, who planned to go in and so forth, but that’s not the purpose of this.
The purpose of this is for Mrs. Pelosi to have a report that tars all Republicans, or at least Republicans who voted for Trump and so forth, as closet white supremacist and insurrectionists, and she doesn’t want anyone that’s going to get the way.
I mean, the commission was already stacked with, I believe eight Democrats, right, against five Republicans and so forth. So, this is just par for the course, what she’s wanting to do. I do think she overplayed her hand because I think the commission gets discredited every day people find out about it. But her aim is not in doubt, and I think Kevin McCarthy is right to make an objection.

Kyle Peterson: Yeah. Kim, what do you think about that? I mean, Pelosi is a canny savvy operator. She knows the politics in the house, but I agree with Bill that this looks like a mistake to me because it makes whatever this committee does seem more blatantly partisan in the eyes of half the country, and hands Republican’s, hands Kevin McCarthy, the high ground. I mean, what do you make of that? Am I wrong about that? Or is there another way to see this?

Kim Strassel: I think you’re absolutely right. Look, she was already courting problems with this commission, in that the entire makeup of it she would get eight people, the Republicans would get five. The rules were stacked in such a way to also make it very difficult for those Republican minority members to have any check on what the commission did in the end.
I think we were always headed, even if there had been Republican cooperation with this and she had accepted the members, we were headed toward a committee that issued two reports in the end; one from the majority, and one from the minority, which is hardly what you want.
You want this to be seen as credible. You want all the members to agree on a basic set of facts. You want them all to agree on a set of recommendations, but her goal from the beginning has instead been to use this commission as a weapon against Republicans, going into 2022 elections, to paint the entire party as lawless and in support of insurrection and basically use it as a narrative. She’ll still do that, but it’ll be much harder for the supposed neutral members of the media, et cetera, to go along with the fiction that this was in any way balanced or a true fact finding mission.

Kyle Peterson: Well, the whole thing, Bill, is a shame in my view, because I agree with you that there are still questions that I would like answers to. Why the capital was so unprotected, what the Capitol police did. There’s allegations that they were letting people in doors and greeting people, and why the response was so slow to get to the Capitol; the national guard, other federal help that could have come.
And I mean, in some sense, Kim’s right that we were always faded to have a majority report and a minority report. I don’t want to sound cynical, but the political incentives here seem pretty clear to me. We’re 16 months from the midterm elections and Pelosi and Democratic leaders want to talk about January 6th all the way till then, and present it as an insurrection. Republican leaders, a lot of them would prefer that it fade into the past.
And so, was there any hope, Bill, that we were actually going to get a non-partisan report ever?

Kim Strassel: I think not in this Congress. And I do think, underscoring what you’re alluding to is, I believe Mrs. Pelosi believes that tarring her political opponents this way, predetermined outcome, they’re all white supremacists, they’re all insurrectionists, is one of the best ways, or one of the most helpful ways, for her to ensure she remains the speaker of the house.
It is a failure of Congress because I believe Congress has shirked its duties in a lot of these investigations. I mean, we always get inspectors general and stuff, which I think is a terrible development. It really should be up to Congress to investigate these things thoroughly. They have the means and so forth, but when it’s so poisoned and Mrs. Pelosi doesn’t even go through the pretense, and largely she does it because she’s backed by the press. The press doesn’t question her on it.
Again, I do think this is backfiring. And I think, to your question, what are we going to learn? We’re going to have to probably get that picture from the arrests and the trials and the court record. Who did what, who was organizing what. We’ve already had a lot of arrests in some of the trials, and I think that’s where the more clear picture- We all saw different things. We saw some people clearly breaking in and so forth, and then we saw other people milling around who just seemed to go in because they were allowed to and waved on.
So it would be nice to sort out all the confusion and give a narrative that hued as closely to the facts of what we know along the timeline as possible, but we’re not going to get it obviously from Mrs. Pelosi’s Congress.

Kyle Peterson: But I guess what I’m still struggling to understand a little bit is what rejecting these two Republican members for this committee gets Pelosi. I mean, does it get her a freer hand to have the Democrats write the report how she wants? Because it seems to me, I mean, even if you allow people on the committee who are bomb throwers on either side of the aisle, and even if you end up with a majority report and a minority report, that kind of process at least is a little bit coherent, as opposed to having a committee, Kim, write a report where Republicans aren’t even participating and maybe they write their own report off on the side.
I mean, it seems to me like it fragments the process. And even if Pelosi’s goal is partisan in nature, it seems to me she has an interest in having the report, the majority report that comes out, be accepted by the public. So, I mean, Kim, again, I’m just struggling to understand what her strategy here is.

Kim Strassel: Well, one thing that I think we are not mentioning is, remember the report comes at the end of this. There’s going to be a lot of theater leading up to it. And I think that, that’s part of Ms. Pelosi’s goal as well too. This committee is going to have the ability to subpoena documents and people. Who is she going to call? Is she actually even going to maybe call some sitting members of Congress? Is she going to try to call the former President? What kind of theater and drama can they get from this and build on it all year long? And then the report.
I agree with you. This now seems very much like a partisan exercise. I think Republicans are going to struggle, too, because they’re going to try to issue their own report. They’ve already announced they’re going to do their own investigation, but they’re going to lack a lot of those powers that the main committee has. So, their ability to actually do that fact finding is going to be more limited. And then you’re going to have public that gets these dueling narratives.
And I think the really sad aspect of this is all of this comes as you see that Americans, again, just have falling trust in institutions. And for all Democrats complained about the Donald Trump years and suggesting that he broke all the norms and the standards, if you step back and look, they’re the ones that so frequently are breaking the rules, and in ways that are very debilitating for the country and civic discourse.

Kyle Peterson: Hang tight, we’ll be right back. You’re listening to Potomac Watch from The Wall Street Journal.

Speaker 1: From the opinion pages of The Wall Street Journal, this is Potomac Watch.

Kyle Peterson: Welcome back. Also this week, the President Biden’s Supreme Court Commission on Tuesday held its latest public Zoom hearing, taking testimony from lawyers, law professors, on ways that the Supreme Court could be reformed or changed. If you really want to torture yourself, you can go watch the YouTube video of this latest hearing only. It runs nine hours.
But Bill, where do you think this whole effort is headed?

Speaker 1: Well, I think it’s headed to confusion. As Kim said, part of the theater. I mean, as we get closer to next year’s election, that is the big kahuna right now. Are the Republicans going to recover a little? And the majorities that the Democrats and joy are razor thin in both the House and the Senate. So again, it also seems the easiest option for the Democrats because they have a willing press corps that jumps right in, to not even campaign on their proposals, their spending proposals, but to campaign on the idea that their Republican opponents are all people like that guy with the fur and the horned hat that was in Mrs. Pelosi’s office.
If you paint your opposition like that, you don’t even have to debate them. I’m not sure it’s going to work. I think there’s growing unpopularity about the Democrats plans. I think that absent Donald Trump, some of the Republican candidates in the House and Senate might have a freer time. And the one thing we have to remember about every election is that no one ever predicts the Republicans do well. Whenever the Republicans do well or better than expected, as last time, except for Donald Trump, it always takes the press by surprise.

Kyle Peterson: Well, it’s a good point that whatever the outcome of this report on the Supreme Court will be, it’s not clear with a 50/50 Senate right now that that power will proceed into the future all that much longer. But it’s interesting, Kim, that, I mean, my view of this commission was that it was essentially an attempt by Joe Biden to kick this question off and let it die in a commission somewhere with, I think, 36 members on it. And what’s notable about this to me though, is that this commission is supposed to issue this report in November, and now we are seeing what the Supreme Court term next year looks like, and when the report comes out, the court will be gearing up to hear these cases on gun rights, on abortion rights. To Bill’s point, it’ll be interesting that this will all swirl together as we approach the midterms, this report from Biden’s commission, as the Supreme Court is really taking up these major cases.

Kim Strassel: Well, you mentioned that Joe Biden’s goal with this, and I generally agree with it is, was to kick the can down the road for these growing progressive demands, that he stack or pack the court. But I think all along the White House and Democrats have seen another goal with this commission, which is to intimidate. This has become an increasing tactic on the left, whether it’s Sheldon Whitehouse saying, “You better do what I want in terms of transparency and key briefs, or you might get restructured.”
You had Chuck Schumer, basically making those “reap the whirlwind” comments that he made to Kavanaugh. And this is another way of doing it, which is to hold out this proposal and these proposals and this report and this commission, to try to pressure the justices into not taking certain cases or to ruling more narrowly, or whatever it might be, because they’re fearful of Democrats taking any opinions and then using them as an excuse to move with this.
Now, one thing that was really notable to me that came out of these testimony is, there’s been a number of attorneys and scholars who have already testified in front of this commission, noting that most of these reform proposals, pretty much all of them, would probably be best to be enacted by the Court’s own internal processes. But that if there was going to be something more sweeping, say for instance, term limits, you’d probably need a constitutional amendment. And if you think getting to 60 votes to overcome the filibuster is hard, try doing that.

Kyle Peterson: Yeah. There have been some proposals to put term limits on the court through just the statute, just through law. And I myself am skeptical that, that would hold up. But Bill, it does seem that that term limits are on the table here. There’s a SCOTUS blog writeup of this most recent commission meeting that says, “Term limits emerge as a popular proposal,” and it talks about there was some debate about whether 18 year terms would be better, 12 year terms, 16 year terms. Aside from the question of whether you need a constitutional amendment to do now, one of the other issues that I see is, how do you transition to a system like that? If everybody on the current court has life tenure, how do you get to a court that has 18 year terms?

Kim Strassel: Right. I mean, that’s just one of the problems. I think one of the reasons Joe Biden, I think, kicked this down the road is because I think he sensed it’s not as popular as the polls might suggest. I don’t think he wants to be the President that was freaking around with the Supreme Court. It’s never worked well in the past before. Even Ruth Bader Ginsburg, I believe, said nine justices are the right number and keeping with tradition. I don’t think that’s a winning issue. It’s very important to Democrats because historically, the last 30, 40 years, Democrats have treated the Supreme Court as their preferred legislature. It’s a lot easier to get five votes in the Supreme Court than it is to go through the hard democratic work of getting stuff passed in every state or even in Congress.
So, they’ve always counted on the Supreme Court to do a lot of the dirty work for them on a progressive agenda, and also to take away some of the sting that they might feel, some of the accountability that they would have if they had to actually make these decisions by a vote. So, I think that the proposals that they’re going to come out, whether it’s term limits, whatever the replacement are, expanding the number, I don’t think they’re going to be as popular as the Democrats think. And I suspect that if the Supreme Court rules in a more conservative direction on some of these other cases coming up on guns, on abortion, if they take affirmative action, I’m not sure, despite the press attacks on them and so forth, that they’ll be as unpopular as the Democrats seem to think they will be with the American people.
I think this is another area that could backfire on the Democrats, assuming everyone has the same view on the Supreme Court and fooling around with it. Look, Democrats have a bad habit of anytime an institution doesn’t do what it wants, they change the rules. They changed the rules in the filibuster. When the Electoral College seemed to be against them, they want to change the Electoral College. Now they want to change the Supreme Court. I’m not sure the American people have a big appetite for that.

Kyle Peterson: This also coincides with the continuing pressure on Justice Stephen Breyer to retire. And Kim, your column Friday is about this. How do you think the campaign is going?

Kim Strassel: I think the progressive’s waging this might want to rethink their strategy, because at this point you might even be able to argue that it’s backfiring. They’re very frustrated this week because of a couple of things. They’d been doing this pressure campaign for several months, but recently the Justice actually hired four new clerks for the next term. That’s usually a good indication they’re going to stay because Justices tend to take these clerkships very seriously and it would be very out of character to just leave these people hanging.
But also he gave an interview to CNN about a week ago, and he was asked about if he had made a decision about retiring, and he just said no and suggested that the things that went into it would be his health, and the court, questions of the court. This is frustrated them, but I think one of the things that they’re missing here is if you know much about Steven Breyer, he’s a real institutionalist, especially among any of the more liberal justices on the court right now. He’s been increasingly vocal over the years, complaining about the degree to which the media and activists and senators have politicized the court. He spoke out earlier this year against Democrats court packing proposals.
And so, the louder these people get, in my mind, the less likely I think he would be to retire because he wouldn’t want to look to be seen to be engaging in some sort of partisan act, and that would make it all the more likely to retire in the middle of a pressure campaign. The other thing that was interesting about that CNN article is, he’s clearly having the time of his life. After Ruth Bader Ginsburg passed away, he finally reached seniority for that wing of the court, which gives them a whole bunch more authority and influence, and he seems to be enjoying that.

Kyle Peterson: Yeah, it seems so. I mean, the job of being Justice Breyer just got a whole lot more interesting. He’d spent two decades as not the most senior Justice on the dissenting side. So now, if the courts, just for the sake of argument, splits along six conservatives and three liberals, he gets to decide, Bill, who writes the dissent. That comes with a little bit of power to shape the dissent and how far it goes, and that’s got to be fun for Stephen Breyer after not having that authority for the past two decades.

Kim Strassel: Right. That’s the advantage of longevity, and it is a big perk, and it has a real difference how narrow or how expansive you wanted a dissent to be. I mean, it’s actually parallel, in that he’s paralleled Clarence Thomas, who is not obviously the Chief Justice, but in the past with the 5-4 decisions, Justice Roberts could change the outcome simply by going and signing with the liberals on the court.
The problem now is unless he takes another Republican appointed Justice with him, he would leave a conservative majority on the other side, and that would leave Clarence Thomas to either write the opinion himself or choose who’s going to write it. So, those are the interesting inside perks of a Supreme Court that effect cases. It might be around the margins, but how broad a decision you’re going to get, how narrow a decision, and they’re all factors in how a Supreme Court justice lands on any particular case.

Kyle Peterson: Thank you, Kim and Bill. Thank you all for listening. We’ll be back next week with another edition of Potomac Watch.


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