Campaign Action
A little over one year ago, Justice Antonin Scalia died. Within hours, Senate Majority Leader Mitch McConnell declared that there was no way President Obama, serving in his last year in office, could legitimately appoint his successor. It was too close to the election, McConnell asserted, and thus the duly elected president of the United States was basically a seat-warmer until the next president came along. That next president, they assumed at the time, would be Hillary Clinton. They had an answer for her, too. They would just simply block any of her nominees.
So here we are now, with a White House in crisis a mere six weeks after inauguration. The attorney general is under a cloud with growing calls for his resignation. This atmosphere, legal analysts Dahlia Lithwick and Sonja West argue, presents far more of a crisis than a pending election did last year.
Under the Republicans’ logic, how can a presidency in which there are myriad investigations of communication with Russia during the campaign possibly be legitimate? Notwithstanding a crisis of legitimacy, the work of the presidency must go on. But the one thing that need not, and should not, go on is the one thing that cannot be fixed later: an appointment to a position of immense importance with constitutionally guaranteed life tenure. As such, the Senate must postpone Judge Neil Gorsuch’s confirmation hearings until the investigations of the Trump campaign’s ties with Russia are resolved.
We know that Michael Flynn lied about his conversations with the Russians. It now seems likely that Attorney General Jeff Sessions did the same. Thus, it makes exactly zero sense to take the position that Obama’s presidency was too tenuous to hold hearings while President Donald Trump’s is on solid footing—and we must proceed with haste. [...]
As the only unelected branch of government, the central pillar supporting the court’s powers is its legitimacy. Because they cannot be checked by the voters, the justices’ sole claim to legitimacy is the constitutionally mandated process that puts each of them on the court. That process, the Constitution explicitly tells us, is that the president nominates while the Senate advises and consents. In this instance, both steps have been deeply compromised—first by the Senate Republicans’ refusal last year to hold hearings on a duly nominated candidate and again by a new nomination from a president who might not have a valid claim to the office. (Not to mention that this is a president who has expressed open contempt for the independence and legitimacy of the judicial branch.)
Let’s just reiterate here—the attorney general, the highest law enforcement officer in the country—is under a big cloud. He by all appearances lied to Congress about whether or not he was in communication with a foreign government that proved to be interfering with the election. When he was deeply involved with the campaign that the Russian actions were helping. The likelihood of the Supreme Court getting involved in deciding the legitimacy of this presidency is growing by the day.
If ever there were a reason to stop a Supreme Court nomination, we’re seeing it now. Democrats can’t stop it from moving forward if McConnell tries to ram it though, but they can make the process very, very slow. They need to. And they need to start making the case right now, loudly and publicly, for indefinitely postponing this nomination.