October 2020 – Legitimacy

Since the death of the late Justice Ruth Bader Ginsburg, the fight over her seat has been filled with ugliness, hypocrisy, danger, and bad form. In recent years, all of our governing institutions have been under attack in various ways leading to a crisis of confidence. The Judiciary is primarily the last branch of government that stands for the rule of law, without which we will have chaos. The confidence of the people is what gives all governments anywhere legitimacy. Without legitimacy, rule is imposed by brute force or tangible extreme wealth.

I have had the privilege of meeting and speaking with four Justices of the United States Supreme Court, all while they were serving on the Court. All of the Justices I have met were appointed by Republican presidents, and the vast majority of the many wonderful judges I have worked for were also appointed by Republican presidents. I have been able to work side-by-side with these judges. I have taught and written on the constitutional law they write. I do not believe judges should be opportunists. This is because I do not believe our courts should be super-legislatures. I believe that court policymaking harms the legitimacy of our judicial system and should be left to our political branches; also, it makes Supreme Court nominations far more consequential and bitter than they should be which, in turn, continues the vicious cycle. Both the Right and the Left in this country are guilty of creating this situation.

I saw it from the Right. In law school, I was Vice President of our student chapter of The Federalist Society. After clerking for two Republican-appointed judges I arrived in Washington, D.C. and quickly became involved in the national Federalist Society (which has become primarily a fringe group but is responsible for Republican appointments to the federal judiciary) attending their dinners and events. I was fortunate to see the inside of things, sometimes the ugly inside. By 2006, while working for the U.S. government, I came to the realization that my confidence and belief in the Republican Party as the supporter of constitutionalism, individual rights, and limited jurisprudence was misplaced. They abandoned constitutionalism and eventually moved toward exploiting a form of White Tribalism. One of their goals became the appointment of right-wing activist judges. In time, I came to admire Justice Ginsburg, not for her opinions but for her vote. Her vote was critical to protect the rights of many in this country, and for that I am thankful. It would be an outrage, in bad taste, and complete hypocrisy for the Republican Party to move forward with a nomination and confirmation of a new Justice (other than Judge Merrick Garland) before we know the outcome of the impending presidential and Senate elections. Therefore, I expect them to do it. As Senator Kamala Harris has pointed out, President Abraham Lincoln deferred appointing a new Justice when there was a vacancy just prior to a presidential election. He thought the American people should have a say first. Any legal professional with an ounce of character would not crawl over the casket of Justice Ginsburg before she was even in the ground to accept a nomination particularly from this president at this time, especially when the American people oppose voting on such a nomination until after the presidential election. Withdrawing from a nomination in the current circumstances is the honorable thing to do. Character is what you actually do in the moment; reputation is what other people say about what you would do. It is the character of three individual politicians in this moment that is important to the integrity of our institutions: the President; the Senate majority leader; and, the nominee. The legitimacy of our institutions is on the line as individuals make these choices.

Why have these judicial nominations become so fraught? I will use one high-profile example (and this is just one):
Abortion. This is one issue that plays an outsized role in these debates. And for the single-issue, conservative voter out there who will hold his or her nose and vote Republican because of judicial appointments in the hopes of outlawing abortion, I’m going to let you in on a secret: Republican leadership is never going to let you win. Why would they? It’s the only reason you vote for them and you’ve been doing it now reliably for decades. If they really wanted to overturn Roe v. Wade and its progeny it would have been done long ago. They merely want to chip away at it and keep your money and votes flowing to them through promises and fear. Outlawing abortion is not a priority for them; I know. As long as it remains just out of reach, you will reliably vote against your own interests and other beliefs to elect a party or person whose priorities are power, wealth, and all the benefits that flow (to them) therefrom. Many senior conservatives and even members of Congress think they are really fighting for the pro-life cause when they focus on voting for Republicans to change the judiciary. You have been my friends, I have been in your living rooms, I know the sincerity of your beliefs. I love you but on this you are mistaken. So what about all these judges that have been appointed by Republicans? Who are they? They are not gods but human beings like you and me, they are part of the national elite in terms of education and wealth, they are, for the most part (with a few notable exceptions), good and intelligent people. But if they don’t care about abortion, what do they care about? Generally, the status quo, law & order, corporatist capitalism, general conservatism. I hear you say that if enough Justices get appointed to the Supreme Court, Roe will eventually be overturned! If we just get this one more, at this time! That possibility has been accounted for. It could happen because, once appointed, judges can be notoriously unpredictable, and then you will be mobilized with your money and votes to work at the State level on 50+ battlegrounds in a never-ending struggle to try to effect societal change that is not going to happen in a country that continues to transform. And all the while you will be supporting the Republican Party as part of “the good fight,” and justice in so many other areas will be denied to so many in terms of voting, economics, health care, structural discrimination and so much more as right-wing judges legislate from the bench. And on and on it will go.

Every judge or Justice appointed by this president serves with an asterisk (*) next to their name because of their questionable qualifications or the ways they have been placed in the Judicial branch by this person and his enablers. It is true of every one of his Supreme Court nominees on down the line, and it will be that way for their entire tenure. But I am older than most of today’s appointees and so were the judges I worked for (some have already passed away). I came up in my profession when honor and oaths meant something to these public servants, and I learned a lot from these men and women. I understand that in the realpolitik of the current time such concepts must seem quaint and old fashioned to these younger attorneys and judges. But these concepts still matter to the legitimacy of institutions. Yet, erosion can be a function of time and we get who we get.

Originally, I intended this post to say that as a former appointee of the Republican President George W. Bush Administration and national security professional, I am joining many others like myself (including former bosses, see https://www.inquirer.com/opinion/commentary/tom-ridge-trump-biden-election-2020-vote-20200927.html) to endorse Vice President Joe Biden for the presidency. I am. But it seems almost an afterthought now that so many have done so before me. (https://43alumniforjoebiden.com) I need not list all the reasons for this decision. For a host of reasons we need a return to competency, normalcy, and the rule of law. There is nothing positive to say about the current occupant of the White House who is swamping the drain, and as a veteran and constitutionalist his presidency has been an abomination to me. He and all of his enablers encompassing an entire political party of kleptocrats, grifters, and liars need to be swept out. This way, the Republican Party can rebuild itself into a sane center-right party that we need, rather than being the corrupt, crazy cult of personality it has become.

Vote as if your life depends upon it; because it does. The legitimacy of our government is at stake.

Timothy J. Keefer

Timothy J. Keefer is an attorney licensed in the District of Columbia and the Commonwealth of Virginia. He graduated with a J.D. magna cum laude, Order of the Coif, Law Review, from The Washington & Lee University School of Law, and with a B.A. magna cum laude, Phi Beta Kappa, in Russian Area Studies from The State University of New York at Buffalo. He has been a professor of National Security Law, and Public Policy. He was a key attorney for the Bush/Cheney 2000 campaign in the case of Bush v. Gore while with the law firm of Covington & Burling. He has provided direct legal and policy advice to three Cabinet Secretaries, over 20 federal judges, and many senior government officials on major constitutional, statutory, policy, and ethical issues. He was an appointee of the President George W. Bush Administration. He was a senior career official of the U.S. Department of Homeland Security 2003-2009. He was a professional in the intelligence community and participated in providing intelligence support in-country to operational units, and in Washington, D.C. to senior military leaders, for the first Gulf War. He is a U.S. Navy veteran.