SCOTUS : loss of legitimacy
The Supreme Court of the United States has no real way to coerce obedience to its rulings. It has no police force, no army. It's rulings have force only because the legitimacy of its authority is well respected. The authority of the Constitution is not enough without respect by the general public and the legal community.
Alas, a number of events in the past decades have erroded that respect by erroding the belief that the Court is a non-political upholder and interpreter of the Consitution. More and more it has become obvious that the Court has become dominated by electoral politics and that some of the Justices are persons of less than stainless character.
I do not mean to impugn the character of the current candidate who may very well be confirmed tomorrow (10/26/2020) but I do mean to impugh the discreditable process by which she has been appointed and is being considered on purely political basis.
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I will list these legitimacy discrediting event chronologically
The 1991 confirmation of Clarence Thomas despite higly credible testimony that he had committed very disgusting , though not criminal, sexual harrassment took place by a narrow margin (52 to 48) largely along party lines. His swearing in was rushed, before added witnesses could be heard. That the mostly male Senate discounted the testimony of the very eloquent woman complainant , basically because she was a woman, does not promote respect for the outcome. And Thomas since then has proven to be a less than stellar legal light.
In 2000, by chosing to hear Bush v Gore, the Supreme Court effectively short-cut the election, cut off the voters' voice. Some of those Justices who voted to grant certorari have since publically voiced regret over hearing this case. We will never know for sure which candidate would have really been elected if the Florida re-count had been allowed to be completed. This took something away from the legitimacy of the Court-chosen POTUS, Bush. In turn this possibly detracts a bit from the legitimacy of Bush's two SCOTUS appointments, that of John Robers and Samuel Alioto.
The political process enabled the Senate Judiciary Committee to refuse to perform their Constitutional duty to "advise and consent" on the merits of Presidential appointees to SCOTUS. They had a duty to hold hearings on the qualifications of appointee Merrick Garland. They refused to do even the slighest scrutiny, much less to vote on the merits. They stonewallled the nomination for 9 months. The seat eventually went to a "polar opposite" appointee of the President not yet elected at the time of the vacancy created by Justice Scalia's death. This lessens the legitimacy of Justice Gorsuch.
A Supreme Court Justice, like Caesar's wife, should be beyond suspicion as to having an honorable character. A Justice should not be under credible accusation of having committed a crime of personal violence (attempted rape). Any Judge should also be of a temperament not given to outbursts of anger, not even when provoked.. Yet once again the testimony of a highly credible witness, one coming foreward reluctantly but out of sense of duty, is discounted. Another woman discounted. Her testimony which should have led to detailed investigation is given only a pretend investigation, potential confirming or dis-confirming witnesses left unheard. So how much legitimacy and respect does Justice Kavenaugh really command or deserve ?
And now we are seeing the hypocrisy of the politicization of the Justice appointment and confirmation process. The same Senators who in 2016 proclaimed that when a vacancy occurs 9 months before an election, it should be filled by the next President, ie by the one who will be elected 9 months hence, are now proclaiming that when a vacancy occurs 46 days before Election Day (less than 46 days before early voting and voting by mail begins) of course the current President can and should fill it. Followed by a break-neck stampede to hold minimal hearings and then confirm and swear in the choice of that current President who seems highly unlikely to be re-elected.
So now we already have 3 Justices whose legitimacy or reputation are such as detract from respect for the Court's legitimacy and tomorrow we may get a 4th one.return to top of page