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OpEdNews Op Eds    H2'ed 4/4/17

Swamping the Supremes: "Qualifications," New Confirmation Politics, and the Gorsuch Restoration of Judicial Plutocracy

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Message Rob Hager

Maine's Angus King is a swing Independent Senator who caucuses with Democrats. As a former lawyer, like many of his colleagues, he could not plead ignorance about the historic importance of his vote on the fateful Senate filibuster against confirmation of Pres. Trump's Supreme Court nominee, Neil Gorsuch. Nothing less is at stake than the struggle for democracy against the plutocracy that Gorsuch represents. Going into the week in which the decision on Gorsuch will be made King remained aligned with the small and declining group of hold-out Democrats. When King finally joined the filibuster on late Tuesday afternoon, the last Senator to make his position known, it became clear that the Democrats' 44 filibustering Senators would be enough to reliably defeat cloture.

The March Confirmation hearings for Trump's far-right, " friendly fascist," and "soulless," nominee who is a plagiarist, defender of torture and a Federalist Society operative, demonstrated no reason for anyone not beholden to the 1% to support Gorsuch. As Sen. Tammy Duckworth (D-IL) explained, "a lifetime appointment to the Supreme Court requires much more than a genial demeanor and an ability to artfully dodge even the most pointed of questions." King criticized the " evasive, and, at worst, simply not forthright" performance by Gorsuch in the confirmation hearings. But for four Democratic Party defectors this was enough.

A weekend of anti-Gorsuch demonstrations in such cities as New York, Chicago, Seattle and Denver was designed to stiffen the Democrats' spine at the opening of the week when the historic vote on Gorsuch will be taken. The 11-9 Republican-controlled Senate Judiciary Committee approved the nomination on Monday and sent it to the Senate floor for three days of debate. The announcements of four previously reluctant Senators, Feinstein, Warner, Leahy and Coons, on the same day made a successful filibuster likely. The key vote will come when Gorsuch supporters vote for cloture (i.e. closing down) of the filibuster. Before they can proceed to an up-or down majority vote for confirmation on Friday as they expect, the Republicans would, under a venerable Senate rule they threaten to trash, need to get 60 votes for cloture. Since 1968 there have been four filibusters of Supreme Court confirmations under this rule. Republicans have only 52 Republican votes plus the votes of three Democratic defectors, which is enough for confirmation. But they lack the 60 votes necessary to end the filibuster.

The systemically collapsing Democrats seem to have received the message that they need to display some of the same kind of the backbone that McConnell's Republicans did when blocking Obama's failed Merrick Garland nomination to fill this seat on the Court. When the New York Times counted 41 Democrats in the filibuster column by Monday afternoon, discussion turned to the predicted Republican abolition of the filibuster by change of the Senate rules.

Angus King had originally hinted that he would vote for cloture but then vote against confirmation where the Republican majority will prevail anyway. Benjamin Cardin (D-MD) and Michael Bennet (D-CO) seemed to suggest that they would take the same approach. This would allow such Senators to effectively vote for plutocracy in practice while pretending to vote against it in principle. Casting votes on both sides of an issue is pretty much routine theatrics for the fake opposition to plutocracy, sometimes described as Kabuki politics. This is what would have been expected from more of the spineless Democrats who are "not inclined to filibuster" if progressives had not intervened to insist that Democrats furnish evidence they are not just Republican lite. In the failed filibuster of Justice Alito's 2006 nomination many Democrats used this means to obfuscate their vote.

This time around, if it were not for the pro-plutocracy Democrats and their corrupt DNC and superdelegates, progressives would be determining this nomination through their own President Sanders. This debt requires payment, which cannot be made by changing the subject to the Russians. Casting a meaningless vote against the elite credentialed and pedigreed Judge Gorsuch, the son of a Reagan pro-pollution EPA director, but refusing to cast the meaningful vote against cloture would not work with a politically aroused public. Since Trump dredged Gorsuch up from the same plutocratic swamp he promised to drain, as he has all his other appointees so far, filibustering Gorsuch should have been an easy call for any true opposition party.

Chris Coons (DE) was counted as the Democrats' decisive 41 st filibusterer. Coons added a highly temporizing qualification to the announcement of his expected vote against cloture. He suggested that if he can get a deal that "ensure[s] the process to fill the next vacancy on the court is not a narrowly partisan process" he might ultimately agree to cloture and therefore to putting Gorsuch on the Court. Since it was not entirely certain that the Democrats did have a secure hold on 41 votes against cloture, Angus King's vote remained important. With 44 votes against cloture Democrats will likely defeat the Gorsuch nomination unless Republicans resort to the "nuclear option" of abolishing the anti-democratic filibuster rule, or legitimizing a work around, as the price for his appointment.

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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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