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Benjamin Wittes Explained


Standard of legitimacy #1: “Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion.”

Standard of legitimacy #2: “Consider finally the prediction that Bush v. Gore would gravely damage President Bush’s and the Court’s own legitimacy. That claim is subject to empirical testing. And the tests prove it false–that is, if legitimacy is regarded as a function of public opinion.”

Indeed. And Wittes’ claims about Roe are also “subject to empirical testing,” and one will find that Roe is in fact supported by 2-to-1 majorities (which is why Democratic candidates for President explicitly say they will appoint pro-Roe candidates while Republican candidates obfuscate about “strict constructionists.”) At any rate, the fact that he considers Roe indefensible but considers Bush v. Gore a perfectly reasonable application of doctrine by conservative justices (I particularly enjoyed the section where he and Berkowitz–attempting to defend the completely indefensible remedy–make not argument except to cite the Court’s own risibly disingenuous “deference” to a state court three justices were otherwise analogizing to Jim Crow nullifiers, although of course the Florida court had never held that the taking advantage of the “safe harbor” provision should pre-empt a constitutional recount) tells you all you need to know about Wittes. Being a straight-up conservative hack is fine if that’s what you want to be, but why the New Republic is hiring this man to provide legal analysis I can’t tell you.

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