David Leonhardt, a relative moderate among the leftists at the New York Times opinion pages, recently expressed a view held by many elected Democrats when he wrote that “the country has reached the point where once-unthinkable solutions are worth debating.” Added the Timesman:
I don’t like the idea of court packing, which I think could lead to never-ending escalation between the parties and the potential breakdown of the judicial system. But I also find the status quo unacceptable: A court majority of dubious democratic legitimacy that sometimes acts as a kind of partisan super legislature…
And remember: Every 5-4 decision that breaks along partisan lines likely would have gone the other way if Senate Republicans hadn’t stolen a seat from Obama.
By “stolen,” Mr. Leonhardt means that in the appropriate exercise of its constitutional role in 2016, the Senate did not consent to President Barack Obama’s nominee Merrick Garland.
And of course Mr. Leonhardt’s smear goes much further, as he called the entire majority of the Supreme Court “of dubious democratic legitimacy.” Here’s his argument:
Four of the nine current Supreme Court justices have been named by presidents who took office despite losing the popular vote.
Two of those four justices were named by a president whose victory was clinched when the Supreme Court ordered a halt to vote counting.
He’s talking about Justices who were appointed by duly-elected Presidents George W. Bush and Donald Trump —and then confirmed by the Senate. To make his argument, the Times columnist appears to be clinging to Constitutionally irrelevant nationwide popular vote totals to denigrate winning campaigns by Messrs. Bush and Trump.
It’s corrosive enough for our politics when partisans refuse to accept the legitimate results of elections. But the Leonhardt critique is also highly misleading.
It’s true that George W. Bush won the Electoral College vote and therefore the Presidency in 2000. It’s true that in 2000 he received fewer votes nationwide than his opponent. It’s also true that in 2000 the Supreme Court ruled that a Democratic effort to apply different vote-counting standards in different parts of Florida was not constitutional, which allowed the Florida secretary of state’s certification of a Bush victory to stand.
But the two Bush appointees whom Mr. Leonhardt seeks to smear were appointed in 2005, a year after Mr. Bush had won re-election ….
On the question of the 2000 “stolen election,” Freeman wins by a knock-out. The “stolen seat … from Obama” is a closer call, but I’d bet a modest amount that Democrats will similarly “steal” a seat if they get the chance — which makes me think “precedent-shattering” is more apt than “stealing.”
And if you read Leonhardt’s column, you’ll find it more balanced than Freeman lets on.