In Balkans, Biden Could Use 1800s Supreme Court Case for Guidance

This week, Vice President Biden is on a diplomatic tour in the Balkans, visiting what many regard as the most problematic areas in the region. In his visit to Serbia, Bosnia-Herzegovina, and Kosovo, he has the opportunity to foster improved relations among parties whose cooperation needs additional encouragement, and few are as well-suited as he to do just that: In Bosnia-Herzegovina, in particular, the vice president has significant experience and meaningful relationships. And he will be stepping onto political soil not unlike that once trod by a fledgling American government.

Biden's mission could not come at a more important time.

Bosnia is in near-crisis. The Dayton Accords of 1995 brought peace to the region, while dividing Bosnia into two constituent entities, the Federation of BiH and the Republika Srpska. The whole is, however, still governed by an international administration—the Office of High Representative—and competing visions of centralization (Bosniaks) and federalism (Bosnian Serbs and an increasing number of Croats) vie angrily for supremacy in defining and interpreting constitutional reform efforts.

The system of government is revealing its limitations, the latest test coming from an investigation into allegations of graft and corruption by Milorad Dodik, the Serbian-entity premier, and selected other current and former government officials. The federal prosecutor and judiciary are also internationally administered, but regarded by the majority of the Serbian population as biased toward Bosniak interests.

Dodik is the most vocal advocate for decentralized governance, and his efforts to prevent further flows of power from subdivision levels to the federal government are often characterized by detractors as unhelpful to Bosnia's integration into the European community. But Dodik enjoys an 85 percent popularity rating among the Serbian population in Bosnia, according to a recent USAID-sponsored survey, and among that population, this investigation is viewed as politically motivated, a perception that has the potential to destroy the credibility of the federal prosecutor and judiciary.

The American vice president can and should make every effort to calm the situation and to seek solutions to the credibility problem the Bosnian federal government has with the ethnic Serb population. American history—particularly the quest for checks and balances in government—may offer guidance in this regard.

The Federalist Party had lost a bitterly contested election in 1800; control of the White House and the Congress passed to Thomas Jefferson and his Democrat-Republicans. The outgoing Federalist Congress passed legislation that allowed departing President John Adams to appoint a raft of judges. Unfortunately for some of those appointees, their commissions were not delivered before Adams left office. President Jefferson deemed those commissions to be therefore null and void. Marbury was one such would-be appointee and sued for his commission.

In 1803, Supreme Court Chief Justice John Marshall crafted an opinion, Marbury v. Madison, that advanced the American brand of democracy by simultaneously conferring on the courts broad power over the other branches while establishing the principle of judicial restraint.

In deciding Marbury, Marshall, through an artful blend of politics and law, crafted a rationale that offered all concerned something of value. His decision established the authority of the Supreme Court to decide whether or not legislation passed by the Congress meets the requirements of the Constitution and, in so doing, declared that Marbury had a right to his commission. But it also established that the Congress did not have the power to confer upon the court the authority to force the president to deliver the commission: checks and balances.

At once, Marshall settled the question of the court's power to overturn unconstitutional laws while making clear that, at times, the court should refrain from exercising its power—especially in highly charged political disputes.

Bosnia's nascent democracy can learn a lesson from the experiences of America's early struggles to define its checks and balances. The capacity for political abuse in prosecutorial discretion is manifestly present. It is no wonder that, in a population at war with itself less than 15 years ago, trust is still a rare commodity.

Sometimes, it is best to underscore one's power by refraining from exercising it. Vice President Biden can take this opportunity and encourage those at all levels of government, but especially those in the judiciary and in the federal prosecutor's office, to take actions and seek resolutions that build trust and credibility of their institutions, and avoid those that can be easily seen as political retribution.