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Jacob T. Levy
One note (in thread form) about my sense of what’s at issue in the new SCOTUS nomination: IMO there’s a real legitimacy problem arising out of the *interaction* of McConnell/ Garland and Russia, on top of that created by the interaction of Shelby County with the 2016 election. 1/
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Jacob T. Levy Jun 28
Replying to @jtlevy
McConnell didn’t just refuse a nominee a hearing for a year. Over the course of that year he *also* told Obama that he would treat any public discussion of Russian meddling as a partisan attack and would respond in kind, not as a defense of shared US interests. 2/
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Jacob T. Levy Jun 28
Replying to @jtlevy
In retrospect it’s entirely possible that both of those together were necessary to secure Trump’s popular-minority win. 3/
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Jacob T. Levy Jun 28
Replying to @jtlevy
So it’s not just that McConnell “stole” a seat through his Garland decision, *and* not just that Trump is a minority president now in a position to lock in a SCOTUS majority. It’s not even just that Trump’s minority-election is tainted by Russia. 4/
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Jacob T. Levy Jun 28
Replying to @jtlevy
It’s that McConnell’s action wrt Garland and his covering for Russian investigation directly contributed to Trump’s minority-election. Does that make him a smart and effective power player? Sure. But it’s not *just* political hardball. 5/
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Jacob T. Levy Jun 28
Replying to @jtlevy
McConnell obstructed the disclosure of a hostile foreign power’s meddling in the US election to help himself with an unprecedented grab of a SCOTUS seat. That’s not collusion in the Mueller-relevant sense; I don’t think McConnell cared about Russia at all... 6/
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Jacob T. Levy Jun 28
Replying to @jtlevy
And I don’t think he was in contact with/ laundering money for/ in the pay of Russia. He’s not a Manafort/ Page/ Flynn figure. But it’s definitely a real and deliberate complicity with the Russian interference for the sake of a domestic political gain. 7/
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Jacob T. Levy Jun 28
Replying to @jtlevy
I don’t think a reasonable response to all that is to say “bygones!” and treat the potential transformation of the Supreme Court by a tainted-minority-election, under-investigation President as a new innocent fact. Shelby County and disenfranchisement in the background... 8/
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Jacob T. Levy Jun 28
Replying to @jtlevy
Are a separate legitimacy problem, but one that likewise means that we have a real problem of rewarding bad behavior and allowing power to entrench itself. Trump’s minority win was also aided by... the Republican SCOTUS majority gutting the Voting Rights Act 9/
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Aeon J. Skoble Jun 28
Replying to @jtlevy
So, impeach.
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Jacob T. Levy Jun 28
Replying to @jtlevy
Which permitted widespread disenfranchisement before 2016. Unlike McConnell’s actions, I doubt that Shelby County has but-for responsibility for the outcome. (The affected states don’t quite line up.) 10/
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Jacob T. Levy Jun 28
Replying to @jtlevy
But it’s close. Combined with other forms of disenfranchisement in the key states it might well have been sufficient. And “Republican SCOTUS makes it possible for a Republican president to squeak through minority election allowing him to cement Republican SCOTUS”... 11/
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Jacob T. Levy Jun 28
Replying to @jtlevy
Is really not great. “Fruit of the poisonous tree” isn’t a doctrine we have much experience applying to politics, even high-stakes constitutional politics. But I think it fairly describes the present Republican opportunity to reshape the Court. /fin
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Jacob T. Levy Jun 28
Replying to @AeonSkoble
Sure. But say one thinks that there's a nontrivial likelihood that Mueller will reveal impeachable offenses. But his timetable for doing so is being stretched out because Trump is stretching out the negotiations about whether and how to give an interview...
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Jacob T. Levy Jun 28
Replying to @AeonSkoble
And, while playing for time that way, Trump gains the chance to transform the Supreme Court. Does it seem like the right answer to treat the judicial nomination in isolation? To hurry it through while Trump is stalling the investigation?
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Ben. No More, No Less. Jun 28
Replying to @jtlevy
VOID AB INITIO! TURN IT ALL BACK, NUNC PRO TUNC, NOV. 7, 2016.
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Jacob T. Levy Jun 28
Replying to @BJS_quire
Can't. That's absolutely not how the Constitution works. So we're stuck with tainted-but-extant office-holders and decisions, and we have to respond accordingly.
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Colin Ibrahim Jun 28
Replying to @jtlevy
Compelling thread. What can really be done about any of this?
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Jacob T. Levy Jun 28
Replying to @ColinIbrahim
If I knew, I'd be doing it...
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James Moody Jun 28
Replying to @jtlevy
It’s all that coming together as culmination that they’ve continuously lost popular vote that makes it bad. One thing to use raw political power when you’ve got some “consent” from governed to do it. another to throw out norms, entrench political power, and do it with sub-50
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