Bench Memos

Law & the Courts

Illegitimate Attacks on Legitimacy

On Slate, Dahlia Lithwick and law professor Sonja West try to concoct an argument for indefinitely postponing Neil Gorsuch’s confirmation hearing. They recklessly raise questions of legitimacy and, in so doing, go far outside the bounds of responsible argument.

In broad outlines, the Lithwick/West argument goes like this:

1. Senate Republicans “insisted” that any action other than keeping the Scalia vacancy open “would tarnish the legitimacy of the appointment.” They argued that “the fact that Barack Obama had a mere year left of his presidency represented a full-blown crisis of legitimacy.”

2. “Nobody in the Senate can plausibly take the view that Trump’s claims to the White House are more legitimate, more publicly accepted, and more robust than were Obama’s in March 2016.” Trump “might not have a valid claim to the office” of president.

3. “The question here [i.e., on Gorsuch] is about the legitimacy of the nomination itself.” “Until the presidency is no longer under a cloud, there can be no hearings, and there can be no votes.”

Some observations:

1. Lithwick and West ridiculously mischaracterize the Republican position on keeping the Scalia vacancy open. Tellingly, they don’t even bother to try to cite anything that supports the “legitimacy” rhetoric they impute to Republicans.

The Senate confirmation process is inherently political, and Senate Republicans made a political argument for keeping the vacancy for the next president to fill. That argument did not remotely deny President Obama’s constitutional authority to nominate someone to fill that vacancy (much less assert a “full-blown crisis of legitimacy”). It merely counterposed the Senate’s constitutional authority to decide not to act on such a nomination.

More to the point of Lithwick’s and West’s silly “legitimacy” talk: Senate Republicans never remotely suggested that if the Senate confirmed the Garland nomination and President Obama then appointed him to the Court, the “legitimacy of the appointment” would somehow be “tarnish[ed].” On the contrary: It’s precisely because such an appointment would of course have been fully legitimate that Senate Republicans acted to prevent confirmation.

2. Lithwick and West invent their phony claim about Senate Republicans’ imagined rhetoric of “legitimacy” in order to justify their own rushing onto that perilous terrain.

I would submit that the rule of law in our constitutional republic depends on a very strong presumption that anyone who lawfully holds an office has constitutional legitimacy. Yes, there’s plenty of room to object to how a person exercises the powers of the office and to complain that certain actions are unlawful and therefore illegitimate. But a contention that a person’s “claim to the office” is itself illegitimate is something very different.

I have on numerous occasions vigorously criticized Donald Trump, both as a candidate and as president, and I respect many of the concerns that his more ardent critics have. But intense political criticism is one thing. Disputing his legitimacy as president is quite another.

The vague speculations that Lithwick and West make don’t remotely call into question the fact that Trump is lawfully our president. It’s grossly irresponsible of them to suggest otherwise and to recast their political objections to Trump as questions of Trump’s “legitimacy.”

3. If and when the Senate confirms the Gorsuch nomination and President Trump appoints Gorsuch to the Court, Justice Gorsuch will be a fully legitimate justice. It’s time to move forward with the process and to put an end to the sort of poisonous follies that Lithwick and West are engaging in.


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