Legitimacy Cannot Be Stolen

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.


  1. This is another good one, Sheila. I had not thought of this particular matter in this way before. Thank you for the insight. Now, the million dollar question is, “When and how will that legitimacy be regained?”

    My fear and sorrow is that for what is left of this old woman’s life there will be no legitimate, revered and honored government. Just a madhouse of greed.

  2. The republicans in congress have proven over and over they have no shame. It’s not about governing, it’s only about winning and control – oh and money.

  3. “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. ”

    And doesn’t this all point to the SCOTUS decision to enact Citizens United? A patented term for “follow the money”! The current dysfunction (stoppage of required Congressional action) goes far beyond this one denial to act on one SCOTUS appointment.

    Here in Indiana we are “waiting with baited breath” for the decision/announcement of keeping Carrier here or shipping the jobs to Mexico. This involves the sudden “legitimate” intervention/intrusion by Trump, president-elect in collusion with Pence, vice president-elect/sitting governor and Holcomb, governor-elect/Lt. governor and those unknown “state incentives”. How “legitimate” is this action and what will it cost us, Indiana residents, much as we want and need to maintain Carrier in this state. I am quite sure the infamous Republican Indiana “budget surplus” will not be touched and the cost will “trickle down” to tax payers. Trump and Pence are buying the loyalty of the Indiana Electoral College members (and probably others) with this last-ditch-effort Carrier “deal”. I understand the economic need here in the state of Indiana but…is one business in one state worth allowing a political publicity stunt to maintain the Trump/Pence status quo regarding the presidential election which effects the entire country and parts of the world beyond?

  4. JoAnn, I echo your thoughts on Carrier. My questions are:

    1. Why were only “near 1,000” jobs saved?
    2. Why were the more than 700 jobs in Huntington still slashed?
    3. Most importantly – what is the cost to Indiana taxpayers and what concessions will be forced upon the people who get to keep their jobs. Will they be paid substantially less than they currently receive?

    My gut tells me that Carried demanded substantial concessions from Indiana and the employees to stay here. They have the legal right to leave, so they would have no reason to stay out of the goodness of their hearts. Trump and pence should have made a deal that kept all of the jobs here.

  5. Nancy; good points! Sorry I cannot remember the name of the corporate owner of Carrier but…Bernie posted that they have government contracts. As owners of Carrier this should be considered regarding the tax incentives provided thus far here in Indiana, giving government some leverage to keep them here.

    Ooops! WTF am I thinking? That would require some form of regulation which is missing from all big businesses; even those with government contracts, tax loopholes and incentives and those offshore bank accounts. All accomplished legitimately.

  6. Legitimacy won’t matter when the rulings start coming in. Whoever Trump appoints will take a seat on the bench and that vote will be counted just like all the others.

    JoAnn, I think you shold narrow your view of who pays to keep Carrier. More than likely, it will be the citizens of Indianapolis (read Democrats) who pay the piper for this move.

  7. Sheila:”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.”

    Coup d’ etat. That’s also the best way of describing the motives of Trump/Pence. Maybe we should all read “Coup d’etat: A Practical Handbook” by Edward Luttwak (Cambridge, Massachusetts: Harvard University Press, 1968) p. 58:

    “Though we will try to avoid all conflict with the ‘political’ forces, some of them will almost certainly oppose a COUP. But the opposition will largely subside when we have submitted our new STATUS QUO for the old one, and can enforce it by our control of the bureaucracy and security forces. This period of transition, which comes after we have emerged into the open and before we are vested with the authority of the state, is the most critical phase of the COUP. We shall then be carrying out the dual task of imposing our control of the machinery of state, while at the same time using it to impose our control on the country at large. Any resistance to the COUP in the one will further resistance in the other and if a CHAIN REACTION DEVELOPS the COUP could be defeated.”

    “Our strategy, therefore, must be guided by two principal considerations: the need for maximum speed in the transitional phase, and the need to neutralize fully the forces which could oppose us both before and after the COUP. If in the operational phase of the COUP, we are at any stage delayed, then our essential weakness will emerge: we shall probably acquire a definite political coloration, and this in turn will lead to a concentration of those forces which oppose the tendency we represent (or are thought to respresent). As long as the execution of the COUP is rapid, and we are cloaked in anonymity, no political fraction will have either a motive, or an opportunity to oppose us.”

  8. Wouldn’t it be nice if Senate Democrats turned the Republicans’ words against them: “The American people should have a say in who fills this vacancy.” More people voted for Secretary Clinton than Mr. Trump. The American people expressed their preference on who should make the appointment. Therefore, Senate Democrats ought to reject anyone who is not a moderate.

  9. It’s over. We all want to “save” democracy, but we are missing the point. Democracy can only live so long as the majority of the voting public are decent human beings, or at least have good intentions. They just aren’t, and don’t. Democracy in the U.S. dies because the majority of Americans are not worthy of it. It was probably just too early for a pioneer society, and certainly the anti-democratic impulses of the founders (voting by those who tended to be most educated, for example) in retrospect seem wise.

    It is indeed a shame the electoral college was required to gain the acquiescence of the south to the new constitution. We are now a country ruled by rubes.

  10. The NY Times article in this link describes “warning signs” that our democracy is changing.
    As for the Carrier news, hooray that jobs have been saved, but do any of you suspect that Carrier was either bullied or courted with favors. There is an old saying that I have always believed, “If something sounds to good to be true, it is too good to be true.” That was my first reaction to the Carrier news. I realize that Trump trades on the ignorance of his followers. They are ignorant enough not to care about how Trump/Pence accomplished this surprising and unexpected news.

    Here is the link: http://www.nytimes.com/2016/11/29/world/americas/western-liberal-democracy.html?_r=2

  11. Carrier is a publicity stunt where Hoosiers who will pay the price have been excluded from what happened in the back room to help Trump “keep his campaign promise.” It is also a blip when compared with the specific problem Sheila sets forth, i.e., essentially a total loss of trust in government. Such trust has been waning since Watergate and the infamous Lewis Powell memo of the early seventies, and has now come full bloom to descend upon us via tea party “rule or ruin/shut the government down” antics that border on sedition and such as McConnell who are interested only in power and not governing (other than to maintain and expand such power).
    We would be well-advised to understand from the lessons of history that great powers can become failed states and that not all states fail via conquest; some fail from loss of social cohesion leading to institutional decay which makes them easy prey for those who do not have their best interests at heart. (See Greek city states whose fights between themselves made them easy targets for Roman legions – and the end of Athenian democracy after only 169 years.)

    Though politicians, Jefferson and Madison and Adams thought public service to be a noble calling steeped in ethical conduct. Compare that with McConnell’s refusal to allow the Senate to consider replacement of a Supreme Court justice and, even more significantly, his announcement that he would not recuse himself on the Senate vote to confirm his wife’s appointment to a cabinet position in the Trump administration! Ethics, anyone?

    The rich and corporate class, aided by inane Supreme Court holdings which allow such monied class to purchase representative government for their further self-enrichment, should be careful in disparagement of government for personal gain because if ultimately successful, there may be no government to disparage as we head to failed state status. Rich nations, like rich people, can get sick and die, not through outside conquest but from unattended-to forces from within, which appears to describe our current situation. It’s called moral decay, a condition that cannot coexist with our democracy, or what is left of it.

  12. Senate Republicans may just as well have said they weren’t going to consider the Garland nomination because Obama made it during his second term. And it’s just the most significant of many vacancies the GOP has been sitting on. I’ll bet those all are filled within the short-fingered vulgarian’s first 100 days. A power grab indeed; the courts will be stacked, and the GOP will have both houses of Congress and the White House. Yes, deplorable, and dangerous behavior, born of their own dysfunctional and obstructive conduct. And yet, they are rewarded at the polls time after time, by voters who are disgusted with the dysfunction and obstruction.

  13. In all previous elections the opposition could grumble but accept the results knowing that what would come out of the other end of the term would still be a viable democracy and the continuing great American experiment in Democracy. This one’s different.

    As the TrumPence cabinet emerges it’s clear that Trump is in way, way over his head like his GOP predecessors Reagan and Bush II, and will be isolated in Trump Tower while Neolibral extremists change the country to a third world banana republic aristocracy.

    The great looting of the American wealth creators, the middle working class, will proceed unrestrained by Cabinet, Congress, and the Supreme Court while the Trump dynasty gets world class wealthy for staying out of the way and pretending that they won and are in control.

    What will emerge from the other end of the term, if indeed there is one, will be wreckage perhaps able to be saved perhaps not.

    This the gift to us by the coalition of deplorables and those who only and always vote “R”.

  14. So it just might be that President Trump would put up Chief Judge Merrit Garland to the Supreme Court appointment. This might be an interesting chess play from their side. Might just quiet down factions for a bit.

    It is my understanding that Carrier moved some production to Mexico several years ago. Many in the Company knew more movement was in the wings before it occurred, perhaps including those who would be with jobs in IN.

    Has anyone been investigating some of the psychoanalytic theories regarding all this? June especially, check out Ester Harding, Psychic Energy, and Way of All Women. Apply some of the ideas not only to our President Elect, his family, but also to the psychic instinctual drives in persons, systems, and cultures. It is most interesting. A little beyond the rational take on what is happening.

  15. JoAnne:

    “That would require some form of regulation which is missing from all big businesses; even those with government contracts, tax loopholes and incentives and those offshore bank accounts. All accomplished legitimately.”

    Don’t mistake “legality” for “legitimacy.” “Legitimacy” is about moral rightness. “Legality,” which is what you are describing, is purely about power.

    In a just society, they are pretty much the same thing. We have not been a just society for a long time, maybe never.

  16. One other point: a very important reason that our democracy can’t survive is that we are more tribal than not. Whether you call it patriotism, nationalism, belief in American exceptionalism, or whatever, it amounts to the practice of blind faith as applied to citizens and their country. I think this has been exacerbated by the decline or continued mediocrity of public education, particularly in rural states, and the accompanying rise in religiosity in recent decades. Also a factor, especially affecting the old white folks who tended to vote Trump, was the exposure to a near lifetime of continuous Cold War propaganda. When people see this country, and I believe most do, as a territory or even as a collection of specific people, rather than as a set of founding principles, we have lost the thread of democracy and will inevitably decline into dictatorship.

  17. America has always been a land of workers, those who create all wealth. They are the “we, the people” in the Preamble to our Constitution. They are also the soldiers and consumers and tax payers and all those who bring the services of government to we, the people.

    They have literally lost virtually all representation in government.

    Some would say that they gave it away. I think that it’s closer to the truth that they were conned.

  18. If we believe our American government is dysfunctional, and I do, it’s time to light a candle rather than curse the darkness. If we believe we live in a nation populated with the deplorable and the irredeemable, then it’s in our best interests as rational adults to provide intentionally redemptive, solid civic education to the next generation of voters — our youth, our K-12 students.

    Looking on the bright side at available resources, I find a couple of worthy school-based programs designed by lawyers in collaboration with educators.

    1) The James Madison Legacy Project, an off-shoot of We the People, is active both nationally and in Indiana where it’s one of the several programs supported by the Indiana Bar Foundation via the Center for Civic Education and a $16M+ grant from the US Dept of Education. http://www.theindianalawyer.com/we-the-people-enters-high-needs-schools/PARAMS/article/42136

    2) Street Law, designed by a group of Georgetown University Law School students in 1972, is another national program that comes to mind as my older son, a Government/Economics high school educator, teaches 4 classes per day of AP Govt/Econ as a required course for a high school diploma and 1 class per day of Street Law as an elective course. He recounts that he volunteered for the Street Law required training as a result of his Street Law high school course in Alexandria, VA where Paul Pelosi, Jr was a fellow classmate. Lance’s contribution to civic engagement occurs in a large public high school, and Paul’s contribution occurs inside the beltway. There’s a place for all of us.

  19. In this post-election time, much of what I hear and read about our countryʻs future is nightmarish and dystopian. Frankly, it makes me feel more depressed and despairing, which makes it easy to slip into apathy. Many other people might be feeling the same way, and instead of drowning our sorrows, we could as BSH says, “light a candle.” The only way out of darkness is to move towards the light, which in this case is to take action in the direction we most want to go.

    I encourage all of us to stand up for educating our children so they donʻt become gullible-deplorables, for supporting ethical decisions by our local and national politicians, for protecting womenʻs rights, minorities rights, workers rights, civil rights, and the list goes on…

    It may sound strange, but the consolidation of radical right wing power and their despicable agenda can be made into a lightning-rod for decent people. This is a time of defining who we are and for what we actually stand as Americans. This requires us to engage in more active participation. Letʻs do it!

  20. As a political independent, what has always troubled me about Sheila’s columns and the comments by the usual suspects is their one-sided nature. This from Wikipedia:

    “As a result, from June 2001 to January 2003, when the Senate in the 107th Congress was controlled by the Democrats, many conservative appellate nominees were stalled in the Senate Judiciary Committee and never given hearings or committee votes.[9]”

    Just sayin’

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