‘The Right to Govern’

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The U.S. Supreme Court building in Washington, D.C., April 15, 2020 (Jonathan Ernst/Reuters)

In the New York Times, Jamelle Bouie defly and succinctly refutes the rest of his own column, which proposes the destruction of the Supreme Court, by laying out a standard that applies perfectly to the recent behavior of the Republican party. Bouie’s core argument for “packing” (destroying) the Court is that:

there is no rule that says you get to keep stolen goods, and the Barrett seat — like the Gorsuch seat — represents a theft.

But the standard Bouie offers up is:

If Republicans win the White House and control of Congress, then they should have the right to govern.

This, by definition, means that there can have been no “theft.” By Bouie’s own terms, if Republicans wish to appoint the judges they prefer, they need to win control of both the White House and of the congressional branch that gets to ratify or reject the appointment of judges (the Senate). In 2014, the Republicans had one of these branches (the Senate) while the Democrats had the other (the White House). As a result, neither had “the right to govern” and no judge was appointed.

In 2016, by contrast, the Republicans won both branches, and, thereby, won the “right to govern.” Using that “right to govern” they appointed Neil Gorsuch and Brett Kavanaugh to the Supreme Court. In 2018, having appointed both Gorsuch and Kavanaugh, they once again won “the right to govern” by keeping hold of the Senate — indeed, by expanding their majority. N0w, in 2020, there is another Supreme Court vacancy. If the Republicans fill it, they will be doing so using their continuing “right to govern.”

There are no “stolen goods” here. There is just the system as it has existed since 1789, and the Court as it has existed since 1869. By Bouie’s own terms there is no case against the Republicans’ filling the vacancy; no case that doing so would represent a “theft”; and no case for changing either the appointment system or the number of justices on the Court. There is a case, perhaps, for more stringent editors at the New York Times.

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