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Colorado AG Weiser backs Biden SCOTUS reform plan, calls Project 2025 ‘scary’
Colorado Attorney General Phil Weiser speaks during a news conference on Jan. 9, 2024, at the Colorado Bar Association office in Denver. (Lindsey Toomer/Colorado Newsline)
Colorado Attorney General Phil Weiser this week, in an exclusive interview with Colorado Newsline, endorsed President Joe Biden’s three-pronged plan for reforming the U.S. Supreme Court, with his own tweaks. And he said he is “terrified” by the Project 2025 plan, which could guide a second administration of former President Donald Trump.
Trump, the Republican nominee for president, has tried to distance himself from the sweeping authoritarian blueprint, though much of it was drafted by members of his previous administration.
Biden on Monday detailed a plan to institute 18-year term limits for U.S. Supreme Court justices and enact an enforceable code of ethics for justices, as well as pursue a constitutional amendment to restore criminal liability for presidents. The plan follows a recent Supreme Court decision granting the president broad criminal immunity. Expected Democratic presidential nominee Vice President Kamala Harris also supports the proposed reforms.
Weiser is a former dean of the University of Colorado Law School, a former attorney in the U.S. Justice Department’s anti-trust division, and a former clerk to U.S. Supreme Court Justices Byron White and Ruth Bader Ginsburg. Weiser started his phone conversation with Newsline outlining what has changed in recent years to accelerate the need for Supreme Court reform.
“I agree with all three components of President Biden’s address, and I do think it is notable how the discourse around the Supreme Court has changed radically over the last 30 years,” Weiser said. “A couple of things have happened that are particularly notable and painful. First, the way (U.S. Attorney General) Merrick Garland did not get a hearing and the way that was justified as you don’t confirm someone in a president’s final year, only to see that rule readily be violated (by the Senate) when it came to Amy Coney Barrett, which basically shows it’s all about power, not about principle. And that has, along with the Dobbs decision (overturning Roe v. Wade) and some other decisions, really undermined the trust in the U.S. Supreme Court.”
Garland was nominated for the Supreme Court in the last year of former President Barack Obama’s administration, but then-Senate Majority Leader Mitch McConnell refused to give him a hearing. Barrett was nominated late into Trump’s last year in office and was confirmed by a McConnell-led Senate.
Starting with the 18-year term limit, Weiser would like to see some refinements. When there is a period of about nine months left in a justice’s 18-year term, Weiser advocates a law requiring a president to make a nomination of someone who would then be required to have a hearing within a certain period of time. Then a final vote of the U.S. Senate would also be mandatory. If that hearing and final vote didn’t happen, the nominee would be confirmed as a matter of law
“That would prevent the sort of gamesmanship that Mitch McConnell was able to do, just sitting on nominations,” Weiser said. “Nominations deserve a hearing and an up or down vote within a reasonable period of time, and we can no longer assume that’s going to happen. That used to be a norm. That norm has now been broken.”
Weiser said that change should be part of a constitutional amendment that also includes the 18-year term limit.
“I am a fan of the 18-year term limit because it ensures that every two years a president can nominate a new justice,” Weiser said. “And one of the concerns that we have is if you have this ability to appoint very young people for life tenure, you can end up with people serving 30, 35, perhaps even 40-year terms. And that’s just not healthy from a standpoint of the court getting out of step with public sentiment.”
Trump was able to nominate, and McConnell forced through, three justices who have tilted the court to a 6-3 conservative majority, resulting in radical-right decisions and upending decades of precedent on issues ranging from reproductive rights to environmental regulation.
The reshaped high court also has been embroiled in ethics scandals, primarily centered on lavish gifts from billionaires with business before the court to Justices Clarence Thomas and Samuel Alito, but also related to their wives, who are outspoken backers of efforts to overturn the legitimate election of Biden in 2020.
“Right now, with the situation around ethics issues and justices able to basically make up their own decisions on when to recuse themselves without any enforceable oversight, we’re compromising the appearance of justice in the Supreme Court,” Weiser said.
As for the recent Supreme Court ruling that presidents enjoy at least presumptive immunity from criminal prosecution for official acts, Weiser made it clear why he thinks that decision needs to be overturned. He brought up a potential scenario, mentioned by Justice Sonia Sotomayor in her dissent, in which a president could order the U.S. Navy’s SEAL Team Six to assassinate a political rival and face no legal consequences. Weiser expanded on the hypothetical.
“That operation, if conducted by an FBI director, deputy director, or an agent who understands its purpose is not legitimate, those individuals can be subject to civil and criminal liability for participating in what is a conspiracy to commit murder,” Weiser said. “The idea that they could be liable, but the person who ordered the murder would be immune from liability, really strikes me as untenable and unjustifiable. And so this ruling is, to my mind, overbroad and dangerous, and I do believe it needs to be reversed.”
Weiser threw out another scenario that may resonate even more urgently given the recent assassination attempt on Trump in Pennsylvania.
“Let’s say the president says to the director of Secret Service, ‘I want to make sure that you’re not protecting my political opponents,’” Weiser said. “If someone as president basically tried to order the Secret Service not to do their jobs, the idea that that would be immune from any civil or legal liability is problematic — that you start giving people the ability to make decisions around life and death and no accountability for it? That’s problematic.”
However, Weiser concedes that passing these reforms in a closely divided Congress and amending the Constitution will be difficult in the current political environment.
Weiser was asked what Project 2025 would mean for an independent Justice Department.
“I’m terrified about, let’s call it, the removal of firewalls between the White House and the Department of Justice,” Weiser said. “We, in this country, after Watergate, very deliberately took actions to prevent, for example, the president from directing prosecutions from the White House, or directing antitrust cases from the White House … The idea that there is a plan for the White House to undermine those basic norms and to erode the Justice Department’s commitment to the rule of law, that’s scary.”
Editor’s note: This story first appeared on Colorado Newsline, which is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and X.
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