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SCOTUS : loss of legitimacy

by Pam Green, © 10/25/2020

I will list these legitimacy discrediting event chronologically

confirmation of a sexual harrasser

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.

SCOTUS pre-empts election of POTUS

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 stolen seat : Obama's third appointee

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.

the anger-non-management attempted rapist confirmed

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 ?

hypocriscy in action

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.

in conclusion

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.

• Supreme Court Alternate History . how different appointments could have been made in 2016.