If Brett Kavanaugh is confirmed, University of Colorado Law Professor Paul Campos argues, he and the other four conservative justices of the Supreme Court will have been appointed illegitimately.
Clarence Thomas, Campos said, perjured himself. John Roberts and Samuel Alito were appointed by George W. Bush, who won the 2000 election thanks to the high court. Bush did not win the popular or electoral vote. He won because a divided court told Florida officials to stop recounting. Then there’s President Donald Trump’s picks, Neil Gorsuch and Kavanaugh. Like Bush, Trump did not win the popular vote.
I’m going to exempt Thomas from this argument, because I think this is about a president’s legitimacy, not a justice’s. George H.W. Bush was duly elected. He nominated Thomas. Whatever you might think of him, he’s legitimate.
I’d argue Roberts and Alito are legit, too. I get why Campos says otherwise. Bush did not win on his own; ergo, his nominees are illegitimate. But Roberts was confirmed in 2005 and Alito 2006—after the 2004 election, in which Bush won the popular vote as well as the electoral college. Yes, you could say Bush could not have won reelection had he not been handed the 2000 election, but nonetheless, he won. The people had their say. I don’t think it’s fair, or accurate, to call his Supreme Court selections illegitimate.
Neil Gorsuch and Brett Kavanaugh are another matter.
Not only did Trump lose the popular vote to Hillary Clinton (by a huge and meaningful margin), he almost certainly won the electoral vote with the help of a hostile foreign government. There are many ways to weaken a republic. One is increasing the power of its most undemocratic branch.
In my view, Trump need not have conspired with the Russians to render his presidency illegitimate. This is an important nuance generally overlooked by the president’s critics. The salient question should be whether a candidate wins on his or her own. If not, their victory belies any ordinary notion of legitimacy.
While it’s still unclear whether Trump colluded (the Mueller probe, when completed, will tell us more), it is likely that Russian saboteurs turned the election in his favor. James Clapper, the former intel chief, has said as much. Kathleen Hall Jamieson, a legend in political circles, underscores this point in Cyberwar: How Russian Hackers and Trolls Helped Elect a President—What We Don’t, Can’t, and Do Know.
In an interview with Jane Mayer, Jamieson implied that asking whether the Russians altered votes is the wrong question. A better question is whether the Russians persuaded enough people in the right states to vote a certain way. Given that Trump won by 80,000 votes in three states, that’s almost certainly what happened.
Extensive studies of past campaigns, Jamieson said, have demonstrated that “you can affect people, who then change their decision, and that alters the outcome.” She continued, “I’m not arguing that Russians pulled the voting levers. I’m arguing that they persuaded enough people to either vote a certain way or not vote at all.”
Such conclusions run the risk of confining our current dilemma to the here and now. But It started long ago. From the Kremlin’s point of view, the best way to weaken our country is to increase the power of our most undemocratic branch. Their election interference–and its consequences–has deepened a pattern established by Republicans after 2000.
Here is what Yale Law Professor Jack Balkin said:
By intervening in the election, the five conservatives installed a President who would appoint their colleagues and successors and would stock the federal judiciary with like-minded conservatives. Bush v. Gore was troubling because the five conservatives appeared to use the power of judicial review to secure control of another branch of government that would, in turn, help keep their constitutional revolution going. It is one thing to entrench one’s constitutional principles through a series of precedents. It is quite another to entrench one’s ideological allies by directing the outcome of a presidential election.
I have said before that Kavanaugh’s confirmation would mark the end of an era in which liberals and those who seek justice can depend on the Supreme Court as a backstop in the fight for liberty and equality. This is the conclusion of a story that liberals have long told themselves—that the rule of law serves the many, not the few, and that the righteous prevail in the end.
But Kavanaugh’s confirmation is the pinnacle of another story. For years, conservatives have taken their place the federal judiciary thanks to two Republican presidents. These jurists will now thwart progressive advancements, preserve moneyed interests, and defend a minority rule for decades to come.