Power can be stolen. Legitimacy must be earned.
I was reminded of the difference by a recent Huffington Post article by Geoffrey Stone. Stone is an eminent Constitutional scholar who teaches at the University of Chicago; I’ve used his texts on constitutional history and analysis both as a law student and more recently as a professor. As he writes,
Throughout my career, I have honored the fundamental role the Supreme Court plays in our system of government. There have, of course, been many Supreme Court decisions with which I’ve disagreed over the years, but I have always respected the essential legitimacy and integrity of the Supreme Court as an indispensable institution in our American democracy.
But now, for the first time in my career, I find myself hesitating. This is not a reflection on the judgment or integrity of any of the current or former justices. It is, rather, a reflection on what the Senate Republicans have done to the fundamental legitimacy of the Supreme Court in the future. By refusing to confirm President Barack Obama’s appointment of Chief Judge Merrick Garland to the Supreme Court, Senators Mitch McConnell, Charles Grassley, and their Republican cronies betrayed our constitutional traditions and undermined a central principle of American democracy. Although they maintained that their unconscionable behavior was “justified” by the fact that the vacancy arose during President Obama’s final year in office, this was a blatantly dishonest assertion. In fact, a long line of presidents have made appointments to the Supreme Court in the final year of their terms, including such historic figures as George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Ronald Reagan.
Those of us in the legal community–Republican and Democrat alike–have pointed to this unprecedented obstruction as additional evidence that American government is broken–that it has become deeply dysfunctional. As Stone notes, this profoundly un-American behavior was based upon “rank partisanship”–the hope that a Republican President would appoint a judge more to their ideological liking.
In the great tradition of “be careful what you wish for,” however, the actions of these Senators will have had a very unfortunate effect: they will permanently undermine the legitimacy of anyone who ultimately joins the Court.
Their unconscionable behavior will rightly cast severe doubt on the legitimacy of whatever individual President Trump appoints in place of Chief Judge Garland. Every vote that justice casts in the future will be called into question, because that justice will be sitting on the Supreme Court bench because of nothing less than a constitutional coup d’etat. Through no fault of his or her own, that justice will be seen as an interloper who should never have been appointed to the Court.
Stone reminds readers that the last effort to do a political “end run” around a Court was FDR’s “court packing” scheme, a response to the then-Court’s invalidation of progressive legislation intended to ease the Depression. Even though the Democratic base deeply disapproved of the Court’s rulings, however, Democratic Senators rejected Roosevelt’s plan.
Indeed, even Roosevelt’s Vice-President, John Nance Garner, publicly scorned the plan as unprincipled. In short, those Democrats – those principled public servants – understood that even a crisis like the Depression could not justify so craven a distortion of the traditional procedures and practices of government in order to achieve politically desired ends.
It’s hard to find fault with Stone’s concluding paragraph:
As a sign of the moral corruption that now plagues our nation, though, in this instance Senate Republicans, caring more about outcomes than principles, ruthlessly distorted the advice and consent process in order to attain partisan political ends. That this happened is nothing short of disgraceful. Let us not forget their shameful abuse of authority. And let us not forget that President Trump’s first appointment to the Supreme Court will in fact be an illegitimate interloper who has absolutely no business being the decisive vote in critical Supreme Court decisions in the years and decades to come. By this act, Senate Republicans have undermined the credibility and the legitimacy of an essential branch of our national government. Shame on them.