The US Constitution explicitly outlines the causes and procedures for impeachment of the President and other ministers of the US government, e.g., Supreme Court Justices. These are the so-called “impeachment clauses”. (Other parts of the Constitution deal with impeachment, but this is the most relevant for present purposes). Prof. Alan Dershowitz, despite being unfairly perceived as being contaminated through association with Fox News, has performed a valuable service, especially in books like Trumped Up: How the Criminalization of Political Differences Endangers Democracy, by urgently advising against the weaponization of political differences, and even free speech, as tools to further purely political ends. As anyone knows who has followed my “Skeptic’s Collection” columns over th
I invite my fellow progressives / leftists to please feel free to vote me off the Island for saying the following, but ... in the interest of fairness, it should be said that acting AG Matthew Whitaker is right in a certain sense about Marbury v. Madison. To be sure, Matthew Whitaker is indeed a crackpot, and his own utterances, both written and spoken, amply justify that description. But let's be fair to broken clocks: even they are right twice a day. (The full text of Marbury can be found here; a very literate, enlightening, and even-handed summary, here.) The Constitution’s Article III is rather ambiguous, not about the scope of the Supreme Court’s original jurisdiction, but about how “hard-coded” that original jurisdiction is in the Constitution. There are two questions at issue.
I must admit it feels really strange to be channeling Alan Dershowitz, not only because Prof. Dershowitz is still very much alive, but also because, at least on some issues, I share his oft-reviled ability to act as an honest broker by disinterestedly considering constitutional issues from the standpoint of both parties to a dispute. But that is the position I find myself in while reading stories about and pondering the back and forth between Democrats / progressives and Republicans / conservatives regarding the matter of the confirmation of Supreme Court nominees Merrick Garland and Brett Kavanaugh. People on both sides of these controversies seem much more conversant with and concerned about the principles of tennis than those of the US Constitution. Moreover, there is about equal