Media, Law & Policy

Stacking Supreme Court Undermines Court’s Democratic Legitimacy

Monday, July 9, 2018, By Daryl Lovell

President Trump’s choice for Supreme Court was revealed Monday night. We have reaction from two 鶹ƵUniversity faculty members.

is a political science professor and Chair of Constitutional Law and Politics at 鶹ƵUniversity’s Maxwell School of Citizenship and Public Affairs.

Keck says:

“The Republican Party’s generation-long effort to stack the Supreme Court has profoundly undermined the Court’s democratic legitimacy. Democratic presidential candidates have won the popular vote in six of the past seven elections, but Republicans have maintained majority control on the Court throughout. This gerrymandering of the Court has been enabled by the vagaries of the Electoral College (which produced “minority presidents” in 2000 and 2016) and by the dramatically unequal apportionment of the U.S. Senate, where California’s 40 million residents get the same number of votes as Wyoming’s 600,000.

“There are three justices in the Court’s history whose nominations were confirmed by Senators who had earned fewer popular votes than those who voted against the nominees, and all three are on the current court. For Clarence Thomas and Samuel Alito, the numbers are at least close, but for President Trump’s first nominee, Neil Gorsuch, the 45 Senators who opposed him earned almost 20 million more votes than the 54 Senators who supported him.

“Whomever Trump nominates tonight, the same is likely to be true. If Republicans continue down this path, Democrats will have no choice but to respond with Court-packing plans of their own when they next control the White House and Senate.”

is a professor at the Newhouse School and director of the Tully Center for Free Speech

Gutterman says:

“Judge Kavanaugh, as a circuit court judge, has a strong record of upholding and even expanding First Amendment rights. Judge Kavanaugh has ruled on and been part of panels of judges extending First Amendment rights in campaign finance cases even before the monumental Citizens United case.
He seems to support the rights of speakers. On its face his First Amendment rulings seem to be somewhat in line with Justice Kennedy’s. But the First Amendment is only one part of the Constitution. The process and the Senate will flesh out Judge Kavanaugh’s record and his place in Constitutional history.”

 

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