Tag Archives: Supreme Court

Dirty Harry, Mitch McConnell and the Rule of Law

A former student recently asked for my opinion on Neil Gorsuch, Trump’s nominee for the current Supreme Court vacancy. As I told him, my concerns about Gorsuch pale in comparison to my deep disquiet over the Senate’s refusal to “advise and consent” with respect to President Obama’s nomination of Merrick Garland.

Let me be very clear: Had Mitch McConnell and the GOP conducted hearings on Garland’s nomination, and then voted against confirmation, I would have disagreed with the result. But I wouldn’t have been appalled. I wouldn’t have seen a rejection that emerged from the proper process as a dangerous affront to democratic norms and the rule of law.

McConnell’s refusal to follow the standard procedure contemplated by the Constitution and traditionally adhered to by the Senate was a worrisome and unprecedented assault on governmental legitimacy.

If there is one clear distinction between western constitutional systems and the various dictatorships and theocracies around the globe, it is the formers’ emphasis on the importance of fair procedures that everyone, even government, must follow. As I’ve previously argued, the Bill of Rights might justifiably be characterized as a restatement of your mother’s admonition that how you do something can often be more important than what you choose to do.

“The ends do not justify the means” is a fundamental principle of American law.

Adherence to objective and uniform procedures–the institutional means through which governments achieve their ends—is at the core of the rule of law. For ideologues and theocrats, however, achieving the “right” outcome, managing to win one’s preferred outcomes even if that requires ignoring or circumventing accepted rules, is what is important. It’s the age-old conflict between the rule of law and the “rule of men” (aka the exercise of raw power).

I’ve always hated those “Dirty Harry” type movies, where the purported “good guy” foils the villain by breaking the rules. Those movies elevate the ends over the means–just as Mitch McConnell did when he exercised arbitrary power, in defiance of accepted democratic norms, simply because he could.

In an article about Gorsuch, Dahlia Lithwick recently argued that

the nomination is wholly illegitimate. Gorsuch may or may not be a good judge, but there is no principled reason for him to have a hearing when Merrick Garland did not. This is a problem of power, not legal qualifications.

The Democrats have an unpleasant choice to make. They can refuse to participate in Gorsuch’s hearings, implicitly normalizing this sort of thuggish behavior and doing further damage to American law and institutions, or they can participate in the hearings and demonstrate fidelity to the Constitutional process, recognizing that they are thereby tacitly condoning McConnell’s unconscionable breach and arguably encouraging more and further departures from government legitimacy and the rule of law.

Thanks to Mitch McConnell and his desire to flex his legislative muscle, to display to his base and his political opponents alike his power to “steal” a Supreme Court seat, either option will further erode American democracy and diminish respect for American political institutions.

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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.

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“Repealing” Roe v. Wade

On 60 Minutes, Donald Trump evidently claimed that “repealing” Roe v. Wade would be a priority.

Among the many, many things our next President does not understand is how government actually works. He may be surprised to discover that Congress–even one dominated by GOP culture warriors–cannot “repeal” a Constitutional right.

That is not to say that Roe is safe, only that it will take several years and some fairly creative judicial legerdemain to completely reverse current case law.

Here is how it will play out.

Trump will have an immediate appointment to the Supreme Court, and may well have one or two others during a four-year term. He has pledged to appoint a social conservative, and that’s a pledge he’s likely to keep. Once a case implicating reproductive choice works its way up to the Supreme Court, that newly conservative Court will take the opportunity to further limit what previous Courts have confirmed: it is a woman’s constitutional right to control her own body. Perhaps the newly constituted Court will reverse Roe outright, perhaps not–but the effect will be the same.

Reversing Roe entirely would leave the legality of abortion up to the individual states. We would go back to the time–a time I vividly remember– when women who could afford to do so traveled to states where abortion was legal, and a significant number of the women who couldn’t afford to do that died in back-alley, illegal operations.

As my friends at Planned Parenthood like to point out, women didn’t begin getting abortions after Roe v. Wade. They just stopped dying from them. 

The only thing prochoice Americans can do to thwart this cynical and theocratic agenda is work tirelessly to prevent their state legislatures from passing new, restrictive measures that are intended to provide the Court with an opportunity to “revisit” the issue. (Here in Indiana, a State Representative has already announced his intention to submit a bill that would criminalize abortions and punish the women and doctors who participated in them. I’m sure theocrats in other states are equally eager to test the anticipated new boundaries.

Given the number of deep red states populated by religious fundamentalists, the odds of defeating all of these throwbacks aren’t good. So while Trump cannot “repeal” reproductive liberty, he can sure eliminate it.

I think the legal terminology is: we’re screwed.

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Recognizing Reality

The Supreme Court has finally stepped in to say “enough” to the oh-so-clever politicians trying to mask their disdain for women’s autonomy by pretending a concern for women’s health.

The Texas law that triggered the lawsuit was one of a number of similar efforts to cloak anti-choice measures in excessive and onerous “medical” regulations. It required doctors performing abortions to have admitting privileges at nearby hospitals, and imposed a number of physical requirements on clinics, making them meet the standards of ambulatory surgical centers.

Although Texas argued that the measures were aimed at protecting women’s health, Rick Perry was among the political figures who were more forthright about the law’s actual motive, describing it as one step toward an “ideal world” in which there would be no abortion.

Motive aside, as Justice Breyer wrote for the majority, neither of the provisions imposed by Texas “offers medical benefits sufficient to justify the burdens upon access that each imposes.” Justice Ginsberg was more blunt, noting that “It is beyond rational belief” that those provisions actually protected women’s health.

As numerous medical experts have pointed out, abortion is one of the safest of medical procedures. (Colonoscopies and tonsillectomies are riskier, but political figures expressing concern about those operations are non-existent.)

What participants in the ongoing battles over reproductive choice, same-sex marriage, and other “culture war” issues that roil American public debate miss is the actual legal question at the heart of these conflicts. The issue is not whether a woman should terminate a pregnancy or carry it to term; the question is: who should decide what she should do?

Too many Americans fail to understand the purpose of the Bill of Rights, which was to protect individual autonomy—a person’s right to self-government—against government infringement. The Bill of Rights, as I tell my students, is a list of things that government is prohibited from doing. Government cannot tell you what to say, or what to believe, no matter how ugly your speech or deluded your belief. Government cannot tell you whether or how to pray, who to marry, how many children to have, or what career to follow.

Government can’t do these things even if a majority of its citizens wants it to. Just as your neighbors cannot vote to make you an Episcopalian or a Baptist, popular majorities cannot use government to restrict the individual liberties protected by the Bill of Rights.

In short, government cannot tell you how to live your life—how to make what the Court has called your most “intimate decisions.” The rest of us don’t have to agree with the decisions you make, but you get to make them.

The Texas law was one of several transparent efforts by lawmakers trying to do an “end run” around a woman’s right to make decisions with which they disagree.

Fortunately, the Court saw through the dishonesty of that effort.

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A Dangerous Road

Yesterday, I was supposed to speak at an event sponsored by Organizing for America, focused on the battle over Antonin Scalia’s replacement on the Supreme Court. Instead, of course, I was in the hospital. Since I hate to let a speech go to waste, here are the remarks I had planned to make.

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The refusal by Senate Republicans to even consider a nominee is dangerous for two reasons. The first reason, obviously, is the need to have a full complement of Justices who will hear and deliberate over the important cases that come before the highest court in the land.

The second reason, however, worries me even more, because the absolutely unprecedented position being taken by Mitch McConnell, Chuck Grassley and the other Senate Republicans represents yet another ratcheting up of the obstruction tactics that the Party of No has engaged in ever since President Obama took office.

This is not the way our system is supposed to work. We don’t elect people so that we can watch them not only refuse to do their jobs but actively throw sand in the gears of government.

Let’s look at what is at stake.

Republicans in the Senate are refusing to participate in the Constitutionally-required process of “advice and consent.” Their argument is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t get to nominate Scalia’s successor.

Of course, that argument ignores the Constitution, which these partisans claim to revere. So much for “strict construction.” But it fails on other grounds as well:

  • Historically, the longest stretch of time between a nomination and a vote has been 125 days. Over 330 days remain in Obama’s term of office.
  • There is absolutely no precedent for this refusal to follow the Constitution. Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President. And even then, they rejected a particular nominee—they didn’t refuse to consider any.

The Republicans’ behavior is thus a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term. If they persist, the Supreme Court will have a vacancy for over a year, and will operate in the interim with only 8 Justices. If the Court splits 4-4, the case sets no precedent, and difficult and divisive issues will remain unresolved.

As troubling as is to see partisan politics affecting the ability of the Court to do its work, what is even more worrisome is the willingness of these Senators to ignore both their constitutional duty and the best interests of the American people in order to demean and diminish a President who was twice elected by large majorities of the American people.

This fixation on sabotaging anything and everything the President does—this unwillingness to support even policies that were originally their own if President Obama proposes them, the refusal to confirm not just a replacement for Scalia, but dozens of lower court judges and agency appointments—is behavior that undermines America’s democratic institutions and calls into question our continued ability to govern ourselves.

This ugly and unpatriotic conduct should be beneath the dignity of members of the United States Senate, but it clearly isn’t.

Although I didn’t plan to say this at the event, it is noteworthy that none of the candidates for the Republican presidential nomination has bothered to counsel against this assault on settled constitutional processes, or express concern that legitimizing this level of animus will make it more difficult for the next President to accomplish anything.

We’re going down a very dangerous road.

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