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OpEdNews Op Eds    H3'ed 3/7/17

No Cloture for Gorsuch

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Message Rob Hager

A swing Senator who caucuses with Democrats, the Independent Angus King of Maine, as a former lawyer, cannot plead ignorance of the historic importance of his decision on the fateful filibuster to deny Trump's far-right, "friendly fascist," nominee, Neil Gorsuch, confirmation as a Supreme Court justice in the next several weeks.

If Democrats display even a fraction of the backbone that McConnell's Republicans did with respect to the Merrick Garland nomination for this same historic seat, they can easily stop Gorsuch. At minimum they would force the revocation, or legitimate a work around, of the anti-democratic filibuster rule as the price extracted for his appointment.

Democrats only need 41 Senators like King out of 48 to support the filibuster by rejecting cloture for the personable, pedigreed and talented Judge Gorsuch that Trump dredged up from the political Swamp he promised to drain.

The vote for cloture that King is contemplating would deny that having Gorsuch on the Court would be worse for the country than not having any new judge on the Court at all. This is the choice Republicans made about Garland, and thereby established a new standard. The new standard, which Republicans applied to a fairly popular president without suffering any backlash in the 2016 election, does not require any Supreme Court appointment to be made that is not good for the country, even if it is good for the party in power. Trump is not even very popular. But Senators like King are already nervously spying an exit from applying the same standard to Gorsuch.

There has never been at any previous time in American history a nomination that would be worse for the country than Gorsuch would be right now. And none that would be better for the plutocratic duopoly.

The Roberts 5 were a menace to American democracy for a decade, as the most plutocratic, right wing majority ever. Their profound damage to the Constitution in cases like Shelby County's evisceration of the Voting Rights Act and their line of pro-corruption cases was only interrupted by Justice Scalia's death last year. The current 4-4 deadlock on the Court has provided the only bright spot in the failed politics of 2016. The ideologically neutralized Supreme Court has created space for the ideologically balanced lower federal courts to furnish some respite for relative sanity compared to the rest of the federal government. This modest little flame of checks and balances holding forth in the descending political darkness will be extinguished if Trump is allowed to fill the Scalia seat with yet another extreme right-winger straight out of the plutocratic Swamp.

Gorsuch is even worse than Scalia and probably even worse than Roberts too, because smarter, a better writer, and personally more polished and likable in service of his right wing ideology. It would be difficult to find a worse nominee to join this Court at this time.

Any Senator who votes for cloture needs to understand in advance that they are going to be removed from office at the next primary or general election on the basis of this single vote. It can be safely predicted that no other vote prior to the 2018 election, short of another Supreme Court nomination or war, will be more consequential than the Gorsuch cloture vote.

Even Trump knows that, aside from national security, "the most important decision a president of the US makes is the appointment of a Supreme Court justice." This is exponentially more true of this particular appointment. Other Republicans reflect the same knowledge of the unusual importance of Gorsuch, which will determine whether the Swamp's systemic plutocratic corruption will be perpetuated, most likely for decades. Among his other outstanding qualities for the plutocracy, Gorsuch is also relatively young at 49.

Trump complains that "Courts seem to be so political." But he hypocritically nominated a thoroughly politicized right wing judge to the Supreme Court whose extreme politics have not changed since he was in high school. Because lower courts tend to follow precedent, and judicial supremacists on the Supreme Court do not, Gorsuch has not even begun to really put his predictably right wing political views into action from the bench. He was chosen because there is very little room for guesswork about what Gorsuch will do on the Supreme Court.

Progressive voters who punished Democrats in 2016 for nominating a plutocrat like Clinton to lead them, especially, need to let it be known that a cloture vote for Gorsuch will be a similar deal-breaker with the Senate Democrats in 2018. The impact of a Gorsuch appointment on corruption will be even greater than electing Clinton would have been. There are Democratic Senators from an unusually vulnerable 25 states up for reelection in 2018. Those Independents who fled from Clinton, thinking Trump was a better bet to drain the Swamp, should do the same for the Republicans, now that Trump has revealed his true Swamp colors. Progressives should make it clear they will not just stay home this time, as is reported to have been a decisive factor in 2016, but give notice they will vote in the primary and general election to get rid of any Senator who fails to filibuster Gorsuch. This is too important a point in history to use half measures.

Voting for cloture is the most significant possible way for corrupt politicians of either party to keep filling the Swamp and drowning democracy. The right vote to allow democracy to emerge from the Swamp is "no" on cloture of the Gorsuch filibuster.

Senator King is one of those up for reelection in 2018. On March 5, he faced a town hall crowd critical of his vacillation about preventing Gorsuch from becoming the fifth horseman necessary to resume the ride of the Roberts Court toward apocalypse. The Roberts' Courts' serial violations of the constitutional separation of powers in its series of pro-corruption decisions overturned a variety of state and federal anti-corruption laws. These decisions that impose a corrupt plutocracy on the country remain. They will either rise -- to inflict even worse damage on the country -- or fall, to rescue the country from plutocracy, depending on whether the Senate approves what the Republicans still like to call a "strict constructionist" to take Scalia's seat.

The Republicans' contrarian, if not incoherently subjective, definition of "strict construction" is the opposite of its historic meaning when Nixon started using the term in the 1960's to presumably invoke justices like Oliver Wendell Holmes, or Felix Frankfurter, who followed venerable constitutional rules such as the "the doubtful case" and "political question" doctrines to maintain proper democratic deference to the elected, political branches of government when exercising the Court's judicial review powers.

Whether or not Nixon and virtually every Republican after him who used the term for their judicial nominees were familiar with these separation of powers rules, they define the intricate boundaries between legitimate judicial review of legislation and illegitimate judicial supremacy on constitutional matters that, like elections and political corruption, fall outside the scope of the judicial powers properly assigned by the Constitution to the Court. These rules provide the only legitimate source for giving any objective legal meaning to the concept of "strict construction." The phrase and its various cognates can only meaningfully refer to the rules denying constitutionally illegitimate political powers to the judiciary, even though Republican appointees like Scalia, Roberts and their intellectual predecessors have been exercising such political powers since 1976. For 40 years Republicans have failed to find an accurate replacement for Nixon's "strict constructionist" term from a different era to describe their now changed criteria for selecting justices. If they were honest that term would now be "plutocratic judicial supremacist." Questioning of Gorsuch should probe this paradox to determine which term best fits his judicial philosophy.

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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)
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