Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law. In this article in The American Prospect he argues his case that we will soon have a completely illegitimate Majority on the Supreme Court.
“….each of the five conservative justices—Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Kavanaugh or someone like him—came on to the Court in a manner that lacks legitimacy. Each is a disturbing story, but even worse, cumulatively they make it clear that the current Court is little more than an extension of Republican power plays in a way that never has occurred in American history.
Anita Hill’s compelling testimony of sexual harassment was met by an angry denial by (Clarence) Thomas, quite like that of Kavanaugh to the charge against him of sexual assault. Thomas put it in racial terms, claiming that it was a “high tech linking for uppity Blacks.” The careful research of Jane Mayer and Jill Abramson in their book, Strange Justice: The Selling of Clarence Thomas, left no doubt that Anita Hill’s story was true and that Thomas got confirmed by blatantly lying. Thomas was confirmed by a vote of 52-48, the closest margin of any justice confirmed in American history.
John Roberts and Samuel Alito are on the Supreme Court because of Bush v. Gore, one of the most shameful decisions in Supreme Court history. On December 8, 2000, the Florida Supreme Court ordered that all of the uncounted ballots in Florida be counted. It appointed Judge Terry Lewis to oversee the counting and asked that it be completed by Sunday, December 10. But on Saturday, the Supreme Court stopped the counting and scheduled the case for oral argument on Monday morning.
On Tuesday night, December 12, the Court, in a 5-4 decision split exactly along ideological lines, ordered a permanent end to the counting of ballots in Florida. The Court said that counting the uncounted ballots ran the risk that similar ballots would be treated differently. But there was no evidence that this was likely to occur, especially because Judge Lewis was there to resolve any disputes and be sure that like ballots were treated the same. Moreover, under long established law, the remedy should have been to give the Florida Supreme Court the chance to develop standards to remedy this. But for the first and only time in American history, the Court decided a presidential election and it was the president they anointed, George W. Bush, who appointed John Roberts and Samuel Alito.
Neil Gorsuch is a Supreme Court Justice because of one of the most shameful episodes in the history of the United States Senate. Justice Antonin Scalia died on February 13, 2016, and President Obama nominated Chief Judge Merrick Garland to replace him. Senate Republicans, though, refused to hold hearings or a vote on Garland’s nomination. Garland’s nomination was pending for 293 days, the longest pending Supreme Court nomination in American history. No one questioned Garland’s impeccable qualifications or even that he was a moderate.
Before 2016, 24 times in American history there had been a vacancy in the last year of a president’s term. The Senate confirmed those presidents’ nominees in 21 of these instances and denied confirmation in three of them. But never before had Senators held no hearing and no vote on a nominee because they hoped that their party would gain control of the presidency in the coming election.”
And next Kavanaugh, or someone very like him will complete the Republican coup of American Justice, appointed by a Chief Executive who is likely the subject of a counterintelligence and obstruction of justice investigation by Robert Mueller.…
One way or another —