Since election night 2016 many have opined about Trump’s ‘crisis of legitimacy,’ but the Kavanaugh confirmation has for the first time exposed a credible legitimacy battle that the Trump Administration will struggle against regardless of whether this particular drunken Yalie gets seated on the Supreme Court.
The concept of legitimacy is so powerful in American political practice, that often it often doesn’t require the law to back it up. Bernie Sanders, for example, shamed Jeff Bezos into paying Amazon employees a reasonable $15 an hour wage simply by making a legitimacy argument. Sanders put the “Stop BEZOS Act” on the table, but it didn’t require passage to bring change. Sanders legitimacy argument was evident in a September 7 tweet when he said: “The issue about Amazon is not just that the wealthiest person on earth, Jeff Bezos, is paying workers unlivable wages. It’s about the ‘new economy’ and the degradation of the human spirit—breaking down people, spitting them out and simply replacing them with new bodies.” This is not an appeal to law. Rather, Bernie’s approach was to undermine the legitimacy of using people as disposables.
The takeaway here is that when the left is castigated as purists for demanding $15/hour, Medicare for all, and ending student debt, our response should be “anything less is not credible.” This is classic legitimacy language similar in tone to language in America’s founding documents such as the Declaration of Independence. From the very beginning of this country, legitimacy battles have been recognized as a political best practice.
Legitimacy in political practice usually is usually talked about in three ways: 1) consent, 2) process, and 3) moral standard. Since consent is arguably primary to process and moral standard, let’s start there.
‘Consent’ is the idea that authority is conveyed to a person, concept or governmental system by our agreement. In the legal sense there are specific ways in which consent is granted or withdrawn. Contract law is manifestly about consent. When you enter into a contract with another entity you’re agreeing to the terms in the document. When an entity breaches the terms of the agreement we have the right to take action, and the law will be on our side.
In our ‘constitutional republic’ we consent that representatives may act on our behalf. They must then adhere to the Constitution, and meet our expectations of serving ‘we the people.’ When our representatives abandon the terms of this agreement on Constitutional grounds, we have a ‘hard case’ for illegitimacy. When representatives abandon promises made during their campaign, we have a ‘political argument’ (or ‘soft case’) that the lawmaker has lost legitimacy, and voters often elect someone else who they believe will legitimately act their behalf.
Next comes ‘process.’ There are legal definitions that describe legitimate democratic processes. Nomination and confirmation are examples of legitimizing processes. But popular opinion also plays a role (as with elections). George W Bush was widely seen as illegitimate because of procedural problems with the recount and the Supreme Court decision Bush v Gore. Specifically, the recount was stopped and the Federal branch usurped state power granting the election to Bush.
If enough people decry a particular process as being illegitimate and undemocratic, then that process (and the results it produces) can be called into question. This is what happened with Bezos—and might have happened during the recount if Gore had fought for the people who voted for him. When Gore surrendered to the recount’s bad actors (Kavanaugh being one of them, funnily enough) he undermined the ability of the movement to withdraw our consent and enforce the legitimacy of process.
The ‘moral standard’ of legitimacy is most relevant to movement power. Sixties-era conflicts such as civil rights and the anti-war movement are classic struggles rooted in moral standard. Current moral standard legitimacy issues surround police murdering African Americans and getting off scot-free; the separation and detention of children from undocumented parents; Flint’s water privatization scheme which poisoned the entire population; unattainable healthcare; and college that requires a lifetime of debt peonage. The MeToo movement also puts the abandonment of moral standards into high relief.
Given these three mechanisms of legitimacy, why is the case of Dr. Christine Blasey Ford v Brett Kavanaugh so singularly strong? As a textbook example of the MeToo movement it slots right in with the movement culture of our historical moment. But in the context of confirming a judge, from Dr. Ford’s allegations to the way Republicans and Kavanaugh responded, all three forms of legitimacy are called into question.
It’s obvious to anyone paying attention that the entire process of Kavanaugh’s nomination (if not his whole career) lacks integrity. He lied throughout the confirmation hearings, and not just the blatant stuff about ralphing, boofing, Devil’s Triangle, and being a Renate Alumnus. He perjured himself on warrantless wiretapping, unlawful detention and torture, and an email theft scandal (among many other things) discussed here an exhaustive series of tweets by Vermont Senator Patrick Leahy who said, “Kavanaugh has misled the Senate EVERY SINGLE TIME he’s testified…On issues big and small, anytime Judge Kavanaugh is faced with an incriminating or difficult question under oath, he cannot be trusted to tell the truth.”
The one thing I actually do believe was true was Kavanaugh he responded to Connecticut Sen. Richard Blumenthal’s question on the meaning of the latin phrase used in jury instructions: “falsus in uno, falsus in omnibus” (false in one thing, false in everything). A political hack with his mortal aversion to the truth would naturally dissociate from any such edict because it instructs us that someone who lies in the little things (ralphing, boofing) should not be trusted in anything (see Leahy’s tweets).
The process standard is also flaunted by the White House blocking a full and thorough investigation of Dr. Ford’s allegations which is usually standard operating procedure.
Lastly, one can point to the scuttling of Obama’s Supreme Court nomination of Merrick Garland as undermining the process in this confirmation. Republicans stonewalled his nomination until after the Presidential election, and instead of responding with moral outrage (which might have led to a movement for his confirmation), Democrats sat on their hands. You don’t see Republicans sitting on their hands now, with this highly flawed judicial nominee. Procedural legitimacy only works when those who are granted the authority of “advise and consent” take their job seriously.
Kavanaugh is on his weakest ground with moral standard. Lying to Congress is a moral failing. Blackout drinking is a moral failing. Sexual assault is a moral failing. To drive this point home he barely hides his contempt for women in this exchange with Sen. Amy Klobuchar:
KLOBUCHAR: OK. Drinking is one thing, but the concern is about truthfulness, and in your written testimony, you said sometimes you had too many drinks. Was there ever a time when you drank so much that you couldn’t remember what happened, or part of what happened the night before?
KAVANAUGH: No, I — no. I remember what happened, and I think you’ve probably had beers, Senator, and — and so I…
KLOBUCHAR: So you’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before, or part of what happened.
KAVANAUGH: It’s — you’re asking about, you know, blackout. I don’t know. Have you?
KLOBUCHAR: Could you answer the question, Judge? I just — so you — that’s not happened. Is that your answer?
KAVANAUGH: Yeah, and I’m curious if you have.
This moment has been cited as an example of Kavanaugh not having the temperament for the highest court in the country. But, the exchange goes beyond temperament and leads directly to moral standing. Someone who loses control like this with a woman who is determining his fitness for the Supreme Court is showing the world that the rules don’t apply to him. Sexual assault, blackout drinking, lying—at every turn Kavanaugh pounds the table with raised voice proclaiming that moral standards are rules that simply don’t apply to him because he “went to Yale,” and “likes beer.”
He is saying that it’s his privilege to pick and choose which laws apply to him. Which, of course means that no rules apply to him. He is quite literally amoral.
Just as authority is granted by the consent of the governed, it may also be taken away by the same. This is a premise of movement politics, and the purpose of mass demonstrations which make visible our challenge to the legitimacy of a policy, politician or system.
As a matter of process, the role of Senators on the Judiciary Committee is to “advise and consent,” which means by giving their consent they’re acting in our stead, and we can take it up with them later if we disagree with their vote.
Well, the movement chose to take it up with them sooner rather than later as seen in the dramatic confrontation with Arizona Sen. Jeff Flake at the elevator prior to the Judiciary Committee’s final vote. Many cite this viral moment as the turning point that allowed Senators Flake, Murkowski, and Collins to find their backbone and deny their consent (in a floor vote) in the absence of an investigation. This is real movement power, but I’ll be surprised if it’s enough to sink this particular nomination. I hope I’m wrong on this.
A procedural Senate vote is scheduled for Friday. If the Senate gives their consent, Fratty McDrunken-Rapist will be seated. But that won’t the end the crisis of legitimacy, not by a long shot (regardless of Nancy Pelosi’s infuriating proclamations to preempt impeachment). Who is the ‘patriarchal coward,’ now Nancy?
Legitimacy is rarely discussed outside of the university or think tank, but the Kavanaugh confirmation should have us pondering the idea for real. When all is going well, we tend to give our tacit approval, conferring legitimacy and moving on. When things go off the rails, like with Trump as President, or a sexual assaulter being seated on the Supreme Court, we tend to ask “hey, is this okay? Is this legit?”
Viewed through a cultural lens, Trump flaunts his presidential illegitimacy every time he speaks. When you see him on television it’s impossible not to think, “how did this happen / he has the nuclear football / please don’t talk anymore / how does even dress himself / this can’t be real.” It’s evident that Trump himself doesn’t even believe in his own legitimacy. He didn’t expect to be president. He didn’t campaign to win. As Michael Moore reports in Fahrenheit 11/9, the whole reason he “campaigned” for president was a ruse to get NBC to pay him more than Gwen Stefani on The Voice.
I was shocked when Trump allowed the limited investigation of Dr. Christine Ford’s allegations against Brett Kavanaugh. I believe that White House counsel and Republican leadership pressured him to relent. This allowed a semblance of legitimacy in process, while he worked behind the scenes to undermine it. As reported in various news outlets, Trump has made every attempt to block the FBI from gathering relevant information. Then, proving that he knows how to play the legitimacy card with his base, he broadcast his real feelings at a Mississippi rally where the crowd shirked with delight as he belittled Dr. Ford and the entire MeToo movement.
He went to Mississippi to protect his brand. Trump began his public life as a cartoonish 80s icon of greed. Decades later he starred in his own reality television show that trafficked in what’s best understood as ‘humiliation-porn.’ A showcase for self-debasement, The Apprentice comes too close for comfort to the 1987 film “Running Man.” Written by Stephen King, under his nom de guerre Richard Bachman, the story portrays America as a totalitarian state where a favorite reality television program, “The Running Man,” documents prisoners who must run to freedom while avoiding mercenaries who kill for the audience’s approval.
Fittingly enough, the original story was set between the years of 2017 and 2019. The Apprentice actually began many years prior, in 2004, and ran until its “star” achieved the highest office in the land—a plot twist that even Stephen King wouldn’t have dared put forward as believable. Or coherent.
WHAT REALLY MADE AMERICA EXCEPTIONAL
When John Locke wrote that “The consent of the governed confers political legitimacy,” the concept stood in stark contrast to the so-called ‘divine right of kings,’ which was the form of legitimacy we were leaving behind when we declared our independence from Britain. It was aristocracy that we sought independence from—and that’s still the case today.
Aristocracy at the time of our founding came in the form of monarchy. Now it takes the shape of a corporate oligarchy operating an economic system that more resembles 12th century feudalism than monarchy. Privilege and wealth connects corporate barons to political power, replacing the fiction of kings descended from heaven (which was supposed to be an improvement on the earlier privilege of wealth).
The root of the word privilege is ‘privus lux’ which literally translates as ‘private law.’ In pre-guillotine France the aristocracy decided that privilege—their private law—meant the wealthy didn’t have to pay taxes. Sound familiar?
Early “Republicans” such as Thomas Jefferson were opposed to such a scenario playing out in the newly formed “America.” That’s why the founders asserted the concept that “we’re all created equal,” which stitched society together in John Locke’s concept of social contract. It was a revolutionary idea, that consent of an equally endowed populace confers political legitimacy on government, and not the other way around. Consent of the governed was what initially made America exceptional.
Sure, their definition of equality required updating, but the genius of the founders is manifest in the creation a system engineered to accommodate edits, ensuring a functional social contract, hopefully in perpetuity.
A final note to consider: Unlike the citizenry, not all legitimacy battles are created equal. The Russia narrative is an authoritarian strategy that claims Donald Trump was not elected in a legitimate process (unproven), and that he’s committed treason (unproven and likely not true). This approach should be anathema to progressives. You don’t need the unobtainable goal of treason to delegitimize Trump. Focusing on his habitual fraud as a businessman provides plenty of familiar territory on which to build a case for illegitimacy, and aligns with any progressive platform.
Reaching for treason when fraud will do, is a move designed to re-ignite the Cold War, which will screw ‘the movement’ for generations, while lining the pockets of war profiteers. People like Nancy Pelosi already know this. Their hope is that we’re too distracted and uninformed to understand how to work this legitimacy thingamajig.
Let’s prove them wrong.
If you read one article on Kavanaugh make it this one by Shamus Khan: