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Quarreling with government structure

[This letter is in response to the “Don’t Call Him ‘Justice’” commentary that appeared in the Oct. 29 issue of Missouri Lawyers Weekly.]

I read with great interest law Professor Gregory Magarian’s commentary “Don’t Call Him ‘Justice,’” published in your Oct. 29, 2018 edition, in which he suggests that Brett Kavanaugh be denied that honorific, asserting that he “doesn’t deserve the traditional presumption of legitimacy.”

Though there is nothing remarkable in Professor Magarian’s opinion that Judge Kavanaugh should not have been confirmed as a Justice of the Supreme Court — something about which the citizens and their elected representatives were and are deeply divided — what is notable is how the Professor supports his argument that Justice Kavanaugh lacks “legitimacy.”

Professor Magarian questions the Republican senators’ tactics in refusing to consider the nomination of Judge Merrick Garland and rushing to confirm Judge Kavanaugh before the mid-term elections, criticizing the senators’ political motives. While such criticism is fair game, the Professor does not stop there. Not satisfied with the Senate Judiciary Committee’s handling of the accusations of sexual assault and with Kavanaugh’s “meltdown” during his testimony, Professor Magarian belittles Justice Kavanaugh as “a minority justice — appointed by a president who lost the popular vote, confirmed by senators who represent far less than half the population.”

In making this argument, the Professor is quarreling with two fundamental elements of the structure of our government established by our Constitution: the Electoral College and the composition of the Senate. Until and unless the Constitution is amended, it remains possible for presidents to be elected without a plurality of the popular vote and all but certain for some senators to have fewer constituents than others. So, why does the nomination and confirmation of a justice, by those democratically elected in adherence to these constitutional requirements, render that person as somehow illegitimate?


Very truly yours,

Canice Timothy Rice Jr.

Attorney at Law

St. Louis

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