Twitter | Search | |
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/
Reply Retweet Like More
Jacob T. Levy 28 Jun 18
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/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
Replying to @jtlevy
In retrospect it’s entirely possible that both of those together were necessary to secure Trump’s popular-minority win. 3/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
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/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
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/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
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/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
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/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
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/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
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/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
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/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
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/
Reply Retweet Like
Jacob T. Levy 28 Jun 18
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
Reply Retweet Like
Jacob T. Levy 28 Jun 18
Replying to @joshtpm
PS: See also this post from on the problem with Trump appointing a justice who could be the deciding vote on, say, whether sitting presidents can be indicted.
Reply Retweet Like
Jacob T. Levy 28 Jun 18
Replying to @jtlevy
Democrats do get to *question* the nominee, under oath. They should directly ask whether the nominee has been asked about, or discussed, presidential indictments, emoluments, or the theory unitary executive -> presidents can't obstruct justice with Trump or any admin official.
Reply Retweet Like