Scott Pruitt’s resignation prompted a number of columns devoted to the “legacy” he leaves–if legacy is the right word for “stench of corruption.” Those columns did get me thinking, however. about the “legacies” of other elected officials and political operatives.

Mitch McConnell’s legacy, for example, will include the badly tarnished and diminished legitimacy of Congress and the Court. McConnell’s willingness to ignore the Constitution’s mandate that the Senate “advise and consent” to a Presidential judicial nominee not only besmirched the reputation of the Senate, but added another blow to a series of events–beginning with Bush v. Gore— that have compromised the Court’s reputation for integrity and evenhandedness.

For his part, Trump is likely to leave several legacies–all profoundly negative–if, as we hope and pray, he does at least leave us with a recognizable country. But it is worth noting one of those legacies–the responsibility that he and McConnell share for the Supreme Court’s politicization and corresponding loss of legitimacy.

In a recent New York Times op-ed, law professors Lee Epstein and Eric Posner considered the way in which the growth of partisanship has affected the Court’s reputation, and wondered “whether a Supreme Court that has come to be rigidly divided by both ideology and party can sustain public confidence for much longer.”

It hasn’t always been this way.

In the 1950s and 1960s, the ideological biases of Republican appointees and Democratic appointees were relatively modest. The gap between them has steadily grown, but even as late as the early 1990s, it was possible for justices to vote in ideologically unpredictable ways. In the closely divided cases in the 1991 term, for example, the single Democratic appointee on the court, Byron White, voted more conservatively than all but two of the Republican appointees, Antonin Scalia and William Rehnquist. This was a time when many Republican appointees — like Sandra Day O’Connor, Harry Blackmun, John Paul Stevens and David Souter — frequently cast liberal votes.

Today’s Justices are far more predictable, which is to say, far more ideological. And as Epstein and Posner note, it is much easier to assault judicial independence when the public sees the judiciary as just another political body.

The Court loses legitimacy when its reputation as an objective, nonpartisan arbiter of Constitutional fidelity is replaced by a belief that it is a political tool reflecting the priorities of the partisans who selected the Justices.  It’s worse when a majority of those Justices represent world-views held by only a minority of Americans.

In a recent article, Kevin McMahon considered the effect on the Court’s legitimacy.

Since Donald Trump lost the popular vote in the 2016 election, he is, by definition, a minority president, elected by a minority of the voters.

Similarly, I define a “minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.

Consider Gorsuch. He was supported by a majority of senators – 51 Republicans and three Democrats. But the votes earned by those 54 senators only added up to a total of 54,098,387.

The 45 senators who opposed Gorsuch, all Democrats, collected 73,425,062 votes in their most recent elections – a nearly 20 million-vote difference.

There are now three Supreme Court justices – Clarence Thomas, Samuel Alito and Gorsuch – that fit the description of a “minority justice.” And they are the only three in the nation’s history.

Now, there is a possibility of a fourth “minority justice” – the second appointed by a “minority president.”

That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy: Will this be a court out of line with America?

These are the questions that ought to keep our elected Senators and Representatives up at night–but very few of the people we have elevated to the federal legislature seem to know or care about anything other than winning and losing elections.

Their “legacies” will be the abandonment of America’s constitutional framework–and any concept of statesmanship.


  1. Well, the writers have captured their truth when mentioning the 50’s and 60’s. Remember, the key player for the establishment was Edward Bernays, Sigmund Freud’s nephew. He was the man who brought propaganda to America — known as Public Relations.

    Propaganda over truth-seeking. Selling over honesty. #Winning

    You can see where it’s evolved today. The media isn’t about truth-seeking and holding misfits accountable for the destruction of our democracy. They aren’t interested in our systemic crises because they are the cheerleaders for the systems.

    ML hit several home runs yesterday, btw.

    The truth is our systems have collapsed, but propaganda has covered up their deaths. The only truths are those who are aware of it, and those who are in various stages of denial.

    There is no political spectrum. There is no right or left. You’re either an oppressor or one of the oppressed.

    Those who recognize they are oppressed are the ones seeking change for the greater good. See Jeremy Corbyn in Britain with the Labour Party. He’s putting together a platform, “For the Many, Not the Few.”

    This inclusive societal organization will benefit all global citizens, not just workers in London. The entire globe can embrace these efforts as well as Bernie Sanders in America. It will succeed because it’s the will of the informed people.

    The resistance will then be the Oligarchs and their paid government apparatchiks with the assistance of the CIA, DHS, and NSA,

  2. There will be plenty of shame to go around for all of the Trump Administration when the history books are written. Imagine what will be said and written about Mike Pence, Mike Pompeo, Steve Mnuchin, Ryan Zieke, Alex Azar, Ben Carson and Sarah Sanders to name just a few of the aid and abettors. Of course, that shame will only fall upon their descendants as these poor excuses of Americans are incapable of shame themselves .

  3. “There are now three Supreme Court justices – Clarence Thomas, Samuel Alito and Gorsuch – that fit the description of a “minority justice.” And they are the only three in the nation’s history.”

    “That raises a question that goes to the heart of the Supreme Court’s legitimacy in our democracy: Will this be a court out of line with America?”

    In my estimation – and my memory – SCOTUS lost all semblance of legitimacy with the appointment of Clarence Thomas; almost immediately upon his acquittal for sexual harassment against Anita Hill. Sitting in judgement on that panel was Ted Kennedy; himself still of highly questionable moral level to be deciding a moral issue of such vital importance to this nation. Senator Kennedy appeared to rein in his personal problems and raised his professional level to become highly respected. Clarence Thomas, however, still makes questionable decisions, believing he is too highly placed to have to explain his reasoning. Some of his decisions are highly questionable regarding health issues due to his wife’s connection to money-making health care facilities.

    The founding fathers designed the Legislative Division to oversee and control the Executive Division or our government; this responsibility was abused during President Obama’s administration and has been ignored since January 20, 2017. Per the Constitution, “Article III, Section 1. The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States. ” Such level of responsibility by appointed lawmakers to a lifetime position requires more than party affiliation as a qualification. There appears to be no control over the Supreme Court but full control has somehow been relegated to one man in the Legislative Division; Senator Mitch McConnell. He has chosen to ignore his Senatorial and Congressional responsibility to this country regarding the Executive Division, the Constitution and to all Americans by refusing to hold the required hearing on his opposition party’s presidential nomination of a SCOTUS appointee. A hearing does NOT mean acceptance and appointment of nominees.

    This court is already “…out of line with America” and is sinking deeper into the muck and mire of the Washington, D.C. swamp on a daily basis. We are rushing closer and closer to becoming a Russian satellite country with no indication of Congressional control over the president who has been publicly controlled by Russia over this past week…their words are meaningless and action by them is nonexistent. We, as a nation have been abandoned since January 1, 2010, when Republicans began overtaking Congress and moved on to control of the Executive Division. SCOTUS doesn’t even come into play at this stage of the political game.

  4. Of additional concern is the out-sized number of lower judges Trump has nominated and the Senate has confirmed. Mitch McConnell slowed confirmations to a crawl while Obama was in office, creating a large backlog for Trump to fill with ideologues. VERY scary. I can’t think of a better reason to vote Democratic this fall.

  5. As Nancy has indicated, we have an unprecented number of barely qualified twits be appointed to Federal Courts everywhere. We MUST turn the Senate blue.

  6. Trump’s toxic legacy will be that our children and grandchildren will be saddled with the next Trump appointee to the supreme court.

  7. If it weren’t for the media and good, true journalism, Todd, you wouldn’t know that there are misfits OR a system to be cheerlead.

    Since Trump’s “legacy” throughout his miserable life has been to screw up everything he touches, anyone he recommends for SCOTUS will be the most damaging choice possible for our national integrity and the rule of law.

    Of greater concern is the the Trump administration’s “discussion” about whether or not to turn over Michael McFaul to Putin for “questioning”. Does anyone want to ask, “Who is the next U.S. citizen to be given to our enemies by this president?”

  8. As I have written you before, in my studies of the Hebrew Torah and its internal image set.., the first thing up is LAW. In the edited text we find a beast devouring a human head. I know which path we are on now. And within the last four days, the content of the news – the appalling and reprehensible apologetics for a confirmed maniacal liar? We are not talking about ‘legacy’ we are talking about the abdication of our lawmakers from their responsibility! The government has abandoned the people and when that happens there is only one thing to do: Change the situation! And all I see in that department are people standing around saying they don’t know where to begin. I know where to begin – at the White House door with the rest of my fellow Americans a few buckets of tar and LOTS OF FEATHERS!!! That is this administration’s legacy – or should be!

  9. Rev.,

    I absolutely appreciate and copy on your rage. But getting to the White House door to tar and feather its chief resident is, to say the least, impractical. The figurative tarring and feathering from the Mueller investigation will be all the vindication we get until Congress changes hands. As I’ve said many times before in a variety of media, Republicanism has brought us to this point and has given us Donald Trump. The Koch brothers gave us Mitch McConnell and his pathetic ilk, but the perversion of the Republican party will end up being their legacy. They will own it forever.

    If we survive this crisis of government and national core values, we will lurch forward to a better place with a better Constitution – corrections and amendments will be made, including the debunking of Citizens United v. FEC, no matter what the goddamned SCOTUS says.

  10. America as a country has been redefined to the world. Our government has been redefined to us. In both cases the redefinition has been from among the most effective the world has known always striving for improvement to an inexplicable mish mash of predatory special interests competing for favor among a decidedly misinformed electorate.

    There are many forces that conspired to bring the failure about. One of course is the completely pervasive entertainment media network that now defines our lives. Another is a pack of hungery oligarchs ready to pick the bones of the wreckage they helped create. Another is Vlad the Impaler trying to expand the range of targets for his oligarchic empire. Another is a political party consumed by grabbing power through a coalition of dysfunctional special interests who put their special interest above any concern for society and the country in general.

    It’s a profane end to a profound centuries old experiment in self government. Proof that humans are not capable of sustaining freedom and control over their own destiny? I would say probably.

    We perhaps can soften the blow and slow our descent starting Nov 6 through sort of free but compromised elections. That would be certainly a step towards recovery but I’m afraid the experiment is over.

    The combination of greed and brainwashing technology and people living in their screens has done us in.

    But, despite that we should soldier on as much as we can. Perhaps the tsunami of predatory forces someday will be put back in their place and something good will emerge if we just keep trying.

  11. Bravo Vernon Turner and Reverend Colunga-Hernandez!!!! While that tar and feathering may not, indeed, be feasible if you still want to try to do it anyway please let us all know and where the participation sign-up sheet can be found. I’m in!!

  12. Here is another Legacy of the Trump-Pastor Pence Regime – The Trump administration on Wednesday eased rules for handling toxic coal ash from more than 400 U.S. coal-fired power plants after utilities pushed back against regulations adopted under former President Barack Obama.

    It pushes back the deadline to close problematic ash dumps and gives state regulators flexibility in how they deal with the massive waste piles that result from burning coal for electricity. >> Side Bar – You can bet “state regulators” in Indiana will have rules that will allow the utilities a blank check to pollute.<<<

    Wheeler, a former coal industry lobbyist, signed the order a week after taking the helm of the agency following the resignation of former administrator Scott Pruitt amid ethics investigations.

    U.S. coal plants produce about 100 million tons annually of ash and other waste, much of which ends up in unlined disposal ponds prone to leak. Some have been in use for decades.

    Data released by utilities in March under an EPA mandate showed widespread evidence of groundwater contamination at coal plants. Heightened levels of pollutants — including arsenic and radium in some cases — were documented at plants in numerous states, from Virginia to Alaska. https://www.truthdig.com/articles/rules-for-handling-toxic-coal-ash-eased/

  13. I was born and raised a Catholic. Today, I am an agnostic. I did come across an interesting story.

    Papal confidantes rue prosperity gospel, distorted ‘American dream’

    In a follow-up to their much-discussed July 2017 article condemning an alliance between conservative U.S. Catholics and Evangelicals as an “ecumenism of hate,” papal confidantes Jesuit Father Antonio Spadaro and Presbyterian pastor Marcelo Figueroa have published a new essay in which they criticize the “prosperity gospel” and its influence on the idea of the “American Dream.”

    In their latest essay in the influential Rome-based Jesuit journal La Civiltà Cattolica, the authors argue that the prosperity gospel, which traces its origins to the Unites States in the late 19th-century, views wealth and success as synonymous with true religious conviction, and consequently, sees “poverty, sickness and unhappiness” as a lack of faith.

    The article hits the nail on the head with this sentence >> “There can be no compassion for those who are not prosperous, for clearly they have not followed the rules and thus live in failure and are not loved by God.”
    Another Toxic Legacy of the Agent Orange-Pastor Pence Regime is the fact that, according to 2016 exit polling, 80% of white evangelicals voted for Donald Trump. This was in spite of the overwhelming evidence of Trump’s inveterate lying, his misogynistic comments and behaviors, his racist statements and proposed policies, his frequent attempts to humiliate real and imagined opponents.

    The prosperity gospel is a nice fit here – Using the prosperity gospel Agent Orange since he is rich and famous must be a recipient of god’s blessings. It follows then, “There can be no compassion for those who are not prosperous, for clearly they have not followed the rules and thus live in failure and are not loved by God.”

    If there is one point in the Agent Orange-Pastor Pence Regime that sits supremely on the summit is a total lack of compassion and empathy for anyone.

  14. Yes, things are bad, but have been worse in American history. Take 1861, for instance, when millions of Americans committed treason, as opposed to millions of Republicans today who are merely seditious in their support of a treasonous administration. Let’s not give up the ship just yet. While tattered, we still have the framework for a reignited democracy to emerge irrespective of the Trumps and McConnells of this world. Step #1 is to retake the House and perhaps the Senate November 6. We can still save our democracy or what is left of it while expanding its reach if we do our duty in November, and can start if successful with retrieval of congressional powers delegated to power-hungry executives such as Section 232 of a Cold War 1962 Act that is no longer sensible in re trade, impeachment proceedings and the like. This is no time to throw in the towel; rather it is time to resist and persevere because our most precious asset held in common – our democracy – is at stake.

  15. Read a little further into the Declaration and you will find the phrase “consent of the governed.” The Kochs and other oligarchs have designed a way to rule without that consent. Read on and see what the only result will eventually be for any of us who still believe in that Declaration.

  16. Monotonous,

    “The prosperity gospel is a nice fit here – Using the prosperity gospel Agent Orange since he is rich and famous must be a recipient of god’s blessings.”

    “If there is one point in the Agent Orange-Pastor Pence Regime that sits supremely on the summit is a total lack of compassion and empathy for anyone.”

    Should I change my direction……Screw the SOCIAL GOSPEL and the SERMON ON THE MOUNT and support the Christian Right and its new savior: President Donald Trump?

    Didn’t America have some of its “finest hours” when Jim Crow still was intact? LET’S GO BACKWARD INSTEAD OF FORWARD. Doesn’t that make a lot of sense? Or is there something wrong with that line of reasoning?

  17. It’s that “damn” Chief Justice Earl Warren and the majority of his Supreme Court that’s caused most of our problems. Agree? Don’t you think it’s about time we had a new breed of justices on the Court?

  18. The point that I’ve attempted to make is the one that drives William “up the wall.” Most of you don’t have the CIVIC COURAGE to deal HONESTLY with the severe RACIAL PROBLEMS desroying America. It’s understandable, but also, unforgivable.

    You lack, as Nassim Taleb has, recently, labeled it…… SKIN IN THE GAME. The only way you can acquire it is through acts of courage. See “Skin in the Game: Hidden Asymmetrics in Daily Life” by Nassim Nicholas Taleb (Allen Lane-Penguin Random House, London, 2018).

  19. Marv,

    William’s wall is a greasy slide of self-imposed ignorance.

    Well, we ALL have skin in the game now, don’t we. Trump decided not to give up McFaul, so that is encouraging for now. That said, it goes to show us what happens to a bully when resistance and outrage are strong and come from all sides. That’s the good fight we all have to keep fighting.

  20. Two things:
    First, everyone who knows this president’s history along with his mindset which has not and will never change, realizes that his first and foremost incentive for holding his present job is to reap all the power which allows him to accomplish his main goal and that’s making money. Everything else is just the price he has to pay. His unwillingness to learn anything about the job in order to both effectively govern and enhance our citizenry and ensure our safety and world status is way down on his list of priorities. He is a little man in a big job…..All these things we will pay for and have to battle to balance out for a long time to come. In his lifetime no of that will matter because he will leave the mess to his children and ours.
    Marv Kramers statement: “You lack, as Nassim Taleb has, recently, labeled it…… SKIN IN THE GAME. The only way you can acquire it is through acts of courage. See “Skin in the Game: Hidden Asymmetrics in Daily Life” by Nassim Nicholas Taleb (Allen Lane-Penguin Random House, London, 2018).”

    Pretty well says it all regarding this country’s ongoing racism and general scourge of unrest.

  21. Vernon,

    “William’s wall is a greasy slide of self-imposed ignorance.”

    Disagreeing with you doesn’t make him ignorant; or does it?

  22. Marv,

    No, that fact doesn’t. In fact, I prefer people to disagree with me so I can learn something from the debate. William just doesn’t have anything to say. That, in addition to his personal attacks sharpens my word choice.

  23. No,Vernon is most likely a racist. He admits he chose his words judiciously. The astute observer is aware I’m of Latin origin. My initial posts that brought me much discord among this forum were of course about Honduras and Berta Cáceres. Those posts were met with much hostility–which revealed a lot about the readers of this forum. This is why Vernon chose to describe my condition as “greasy”. He is a racist,vile, foul buffoon. I’m sure his outrage wrt Trump is guided by his own self loathing. Trump and Vernon are very similar in tone. Since the professor has given this maniacal clown a forum and bully pulpit,I’m going to assume she shares Vernon’s racist attitude.

Comments are closed.