THE SUPREME COURT WAS “ILLEGITIMATE” WHEN IT WAS A BARRIER TO LEFTY GOALS, SACRED WHEN IT WAS ADVANCING THEM, AND WILL RETURN TO “ILLEGITIMATE” STATUS WHEN IT STARTS THWARTING THEM: A Preemptive Attack on the Supreme Court.
AMERICA’S progressives have spent most of the past year wailing about people who undermine faith in democratic institutions. “Misinformation” that casts doubt on the election of President Biden, they tell us, must be combated at every level — by “calling it out” where possible and censoring it where necessary.
Unfortunately for their case, these same people call into question the legitimacy of virtually every election they lose: George W. Bush “stole” the 2000 election; the Koch brothers’ wicked weaponization of Citizens United gave us the Tea Party wave of 2010; and of course the 2016 election was handed to Donald Trump by Vladimir Putin. And all the while, they have pushed relentlessly to loosen voter-integrity laws, as if making election procedures a partisan issue can’t reasonably lead anyone to question election results.
Simply put, throwing a temper tantrum every time you lose an election has become a bipartisan habit, one that Democrats are at least as prone to as Republicans. Witness the preemptive strikes on the legitimacy of today’s Supreme Court.
The progressive narrative here is based on an essential piece of misinformation, albeit one whose falsity is lost on most proponents, including more than a few law professors. That is the contention that Republicans in the Senate illegitimately blocked Barack Obama’s nominee to fill a vacant seat during the 2016 election but then turned around and confirmed Donald Trump’s nominee four years later. Thus, through what Harry Reid used to call an “untoward maneuver” on Mitch McConnell’s part, the Republicans erected an illegitimate supermajority of conservative justices.
Lawrence Douglas, who holds the James Grosfeld chair in Law, Jurisprudence, and Social Thought at Amherst College, recently argued in The Guardian that, to protect the Supreme Court’s legitimacy, one of the conservative justices should summarily step down so the Democrats can fill the seat. Douglas asserts:
And just as we might hope that a person who, through no fault of their own, has come into possession of a good not rightfully theirs, would return that object, Coney Barrett and Gorsuch could do the right thing for the nation by agreeing that one of them should step down.
Douglas argues that one of the two justices’ seats is “not rightfully theirs” because, “if presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; if presidents do, then Gorsuch’s is illegitimate. You can’t have it both ways.”
In fact, both confirmations complied with constitutional requirements.
The Constitution provides that Supreme Court seats are to be filled by the president, with the advice and consent of the Senate. This assignment of roles can get confusing, but it’s not rocket science. Critics have argued that Obama’s nomination of Merrick Garland was the same as Trump’s nomination of Amy Coney Barrett: Both occurred in an election year, and Mitch McConnell should have brought both of them up for a vote.
But the two situations were not analogous, for in both situations the Republicans controlled the Senate, and in Obama’s case, that required negotiating with the opposition party, not exactly his forte. In reality, Obama could easily have filled Antonin Scalia’s seat: All he had to do was nominate someone conservative enough that Republicans would be happy to confirm the nominee. But, with the 2016 election looming, Obama naturally saw a chance to flip the seat long held by Scalia and establish a solid progressive majority on the Court. He decided to nominate a solid progressive who was mainstream enough that Republicans might be pressured into confirming him; and if they didn’t, he was betting that Democrats would win both White House and Senate and would soon be able to fill the seat with anyone they liked.
The Constitution provides that Supreme Court seats are to be filled by the president, with the advice and consent of the Senate. This assignment of roles can get confusing, but it’s not rocket science. Critics have argued that Obama’s nomination of Merrick Garland was the same as Trump’s nomination of Amy Coney Barrett: Both occurred in an election year, and Mitch McConnell should have brought both of them up for a vote.
But the two situations were not analogous, for in both situations the Republicans controlled the Senate, and in Obama’s case, that required negotiating with the opposition party, not exactly his forte. In reality, Obama could easily have filled Antonin Scalia’s seat: All he had to do was nominate someone conservative enough that Republicans would be happy to confirm the nominee. But, with the 2016 election looming, Obama naturally saw a chance to flip the seat long held by Scalia and establish a solid progressive majority on the Court. He decided to nominate a solid progressive who was mainstream enough that Republicans might be pressured into confirming him; and if they didn’t, he was betting that Democrats would win both White House and Senate and would soon be able to fill the seat with anyone they liked.
So Obama decided to raise the stakes and put the onus on Mitch McConnell. Unfortunately for him, playing political poker against Mitch McConnell rarely turns out well. McConnell raised the bet and announced that no vote would be held on Garland’s nomination, thereby making the crucial seat a key issue in the 2016 election. McConnell has been endlessly pilloried for that move, but all he did was make precisely the same calculation that Obama had made, with just as much right and reason, except that he was arguably cornered into it by Obama’s high-stakes gamble.
It was a considered risk on Obama’s part and would have paid off hugely for progressives — if Democrats hadn’t lost the 2016 election. Instead of paving the way for someone even more progressive than Merrick Garland, the 2016 election paved the way for someone even more conservative than Scalia, if that was possible: Trump quickly nominated Neil Gorsuch, and the Senate quickly confirmed him. Brett Kavanaugh and Coney Barrett followed.
Douglas’s implied argument of “constitutional but illegitimate” recalls Dan Rather’s “fake but accurate” defense of misinformation that he peddled during the 2004 election. But the tactic is even more unavailing here, for Douglas’s position is based not on any democratic principle, but rather on his reading of a principle that he vehemently disputes, namely the “McConnell rule.”
McConnell’s narrow justification for not holding a vote over Garland’s nomination in 2016 was basically this: When nominations occur during an election year, and White House and Senate are controlled by different parties, either the president or the Senate may elect to keep the seat vacant until after the election.
As noted previously, the failure to fill Scalia’s vacant seat during 2016 resulted from a combination of moves in which Obama had first-mover advantage. In fact, if the Democrats had won both White House and Senate in 2016, McConnell’s best move in the lame-duck session would have been to push for the immediate confirmation of Garland, to limit the damage. Obama’s best move would then have been to withdraw the nomination so Hillary Clinton could nominate someone even more progressive. These “manipulations” of the rules are not only not illegitimate — they are precisely the interplay of elected bodies that the Framers had in mind when they chose to divide the power to appoint federal judges between president and Senate.
Like the phrase “our democracy,” which just means “untrammeled Democratic Party power,” Democrats’ talk of legitimacy and the Constitution is just about . . . untrammeled Democratic Party power.