1. Paul Campos says that if Brett Kavanaugh is confirmed, he and the other four conservative justices of the Supreme Court will have been appointed illegitimately. lawyersgunsmoneyblog.com/2018/10/kavana…
2. Clarence Thomas, he said, perjured himself. John Roberts and Samuel Alito were appointed by George W. Bush, who won the 2000 election thanks to the court. Bush did not win the popular or electoral vote. He won because a divided court told officials in FL to stop recounting.
3. Then there’s President Donald Trump’s picks, Neil Gorsuch and Kavanaugh. Like Bush, Trump did not win the popular vote either.
4. I’m going to exempt Thomas from this argument, because I think it’s about a president’s legitimacy, not a justice’s. George HW Bush was duly elected. He nominated Thomas. Whatever you might think of him, he’s legitimate.
5. 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 2004 .
6. 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 say they are illegitimate.
7. Neil Gorsuch and Brett Kavanaugh are another matter.
8. 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 benefiting from the weakening of the US.
9. There are many ways to impair a republic. One is increasing the power of its most undemocratic branch.
10. In my view, Trump need not have conspired with the Russians for their aide to render his presidency illegitimate. This is an important nuance generally overlooked by the president’s critics.
11. The salient question, however, should be whether a candidate wins on his or her own. If not, victory beggars any ordinary notion of legitimacy.
12. 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.
13. Kathleen Hall Jamieson, a legend in political circles, underscores the claim in Cyberwar: How Russian Hackers and Trolls Helped Elect a President—What We Don’t, Can’t, and Do Know.
14. In an interview with @JaneMayerNYer, 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.
15. Given Trump won by 80,000 votes in three states, that’s almost certainly what happened. Mayer: Extensive studies of past campaigns, Jamieson said, have demonstrated that “you can affect people, who then change their decision, and that alters the outcome.”
16. Mayer: 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.”
17. Such conclusions run the risk of pegging our current dilemma to the here and now. It started long ago.
18. As I said, one way to impair a republic, from the Kremlin’s point of view, is to increase the power of its most undemocratic branch. The Russians, however, were deepening a pattern established by the Republicans after 2000.
19. Here is what @jackbalkin (via Campos) 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.
20. Balkin: 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.
21. Balkin: 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. digitalcommons.law.yale.edu/cgi/viewconten…
22. I have said in previous editions of the Editorial Board that Kavanaugh’s confirmation (should he be confirmed) will be 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.
22. This is the conclusion of a story liberals have told themselves—that the rule of law serves the many, not the few, and that the righteous prevail in the end.
24. But Kavanaugh’s confirmation is the acme of something else. Years and years of conservatives taking their place in the federal judiciary thanks to two Republican presidents.
25. These jurists will push back against progressive political energy, preserve moneyed interests and otherwise defend for as long as possible minority rule.
26. Thanks for reading. Please share! And please sign up for the Editorial Board. Sign up is free. You can subscribe later. Thanks! stoehr.substack.com/p/russians-dee…
