The Gorsuch-nomination battle may restore some legitimacy to the Democrats as an opposition party to plutocracy, confront Republicans with the prospect of shooting their own foot by eliminating the filibuster as the cost of restoring the plutocratic Court majority, and set the stage for a 2018 referendum on the Roberts Court's corrupting "money is speech" jurisprudence, for which Gorsuch would restore the essential fifth vote.

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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.

Though Fox News claimed "an attempt to change the rules could be inevitable," it was not entirely clear that the Republicans had 50 Senators willing to change the rules. Since the rule has primarily been used to allow obfuscating votes on both sides of a nomination, its repeal may make little real difference. It is difficult to say how many times the threat of a filibuster moderated a president's choice. Looking at the current Court the Democrat justices are moderate, while the Republicans are extremists. At least two of the latter, Thomas and Alito, should have been successfully filibustered by Democrats who had the votes needed to do so. But they were not.

Some Republicans might regret abolition of the filibuster rule since over the long run it favors Republicans as the natural minority party whenever an authentic Democratic opposition to plutocracy is organized. Republicans more importantly worry that abolishing the filibuster for Gorsuch may lay a "stepping stone to taking away the legislative filibuster," which would change the very nature of the Senate. After the rule is abolished for Supreme Court confirmations, Sen. McCain (R-AZ) is "convinced it's a slippery slope" to that result, although he supports it as necessary to put Gorsuch on the Court anyway.

Former Democratic Majority Leader Harry Reid contends that abolishing the filibuster is both inevitable and "one of the best things that has happened to America in a long time." When in 1991 Democrats threatened a filibuster against the confirmation of Justice Clarence Thomas, Sen. Orrin Hatch (R-UT) contended "that the filibuster was used solely in civil-rights matters to stop the onward push for civil rights" and therefore should not be used to block a black nominee. Reid's successor, McConnell, who understands this checkered history of the rule originally conceded it will take 60 votes to confirm Gorsuch, while also consistently predicting he would get those votes. Contrary to Reid, some hold-out Democrats like Coons and Bennet claimed that they were concerned about losing the filibuster rule. It is more likely they sought to negotiate the terms of their capitulation to the plutocracy. It is notable that, in the end, 44 Senators abandoned such temporizing process excuses and took a clearly political stand against Gorsuch.

Political Justice

Trump complained that "Courts seem to be so political." But with Gorsuch Trump hypocritically nominated to the Supreme Court a thoroughly politicized judge whose extreme right-wing politics have not changed since he was in prep school. Because the lower federal court where Gorsuch has been working follows precedent, while judicial supremacists on the Supreme Court do not, Gorsuch has not yet really begun to put his predictably right-wing ideology into action from the bench. As a canny contender for the Supreme Court seat, when on the Circuit Court Gorsuch tended to achieve his ends by tinkering with procedure more than by sweeping rulings of substantive law. But Gorsuch was chosen because there is very little room for guesswork about what politics he will pursue on the Supreme Court for the plutocracy.

That he is a member who regularly speaks at events of the quasi-official commissariat for right-wing legal ideologues known as the Federalist Society saves progressives the tedium of parsing Gorsuch's legal writings to divine his political views that will determine his conduct on the Supreme Court. The well-funded commissariat has already done all the intensive vetting necessary to assure that Gorsuch will be no less reliable an ideologue than Roberts and Alito, who were similarly approved and groomed for the purpose of serving the plutocracy.

Trump rubber-stamped this plutocratic organization's choice. As Sen. Blumenthal (D-CT) said: "The wholesale outsourcing of nominee selection to interest groups is without known precedent, especially for a position as important as associate justice of the Supreme Court." This alone is sufficient reason to vote against Gorsuch. But there is more.

One of the most experienced and reliable reporters on the Supreme Court beat, David Savage, reported that one of the highly litigious, multi-billionaire funders of the Federalist Society directly intervened through his attorney with George W. Bush to originally appoint Gorsuch to his current, and only, judgeship. That this particular plutocrat, for whom Gorsuch was then serving as outside corporate counsel, continues to have financial ties to Gorsuch recalls the practice of Gilded Age plutocracy. At that time lawyers who were directly identified with particular special interests were appointed to the Supreme Court to serve them. Since the Supreme Court's pro-corruption rulings combined with Congress' recent pro-corruption legislation concentrated into very few hands the power of plutocrats to purchase the federal government it is no surprise to see the return of such an alignment of a justice with an individual plutocrat in this very next nomination.

When the Republicans led a successful filibuster in 1968 to block the elevation of Justice Abe Fortas to replace the retiring Earl Warren as Chief Justice, it was because Fortas was too political in his continuing involvement with Lyndon Johnson and also because of a potential indirect financial conflict of interest with some political investors. This was considered sufficient reason to warrant the then-unusual use of a filibuster for purposes other than defending Jim Crow form legislative reforms. These reasons for the historic defeat of Fortas which led directly to the Nixon Court, Buckley v Valeo, and the current era of legalized corrupt plutocracy, are not dissimilar from the reasons warranting a filibuster of Gorsuch. Gorsuch is both highly political and also has a potential indirect conflict with the interests of his plutocrat benefactor.

New Standard

While Sen. King, along with Democrats like Joe Manchin, Heidi Heitkamp, Michael Bennet and Joe Donnelly, was contemplating a vote for cloture other Democrats like Senators Menendez and Cardin, remained tactically undecided. A pro-cloture vote by any of these seven would deny that having Gorsuch on the Court would be worse for the country than not having any new justice on the Court at all. This is the choice that Republicans made about Chief Judge Merrick Garland, and thereby established a new standard for Senate confirmation of Supreme Court nominees.

Without suffering any voter backlash in the 2016 election, Republicans introduced this new political standard for use against the nominee chosen by a president who was at comparable times in his tenure, and still remains, considerably more popular than Trump. By returning a Republican-controlled Senate in 2016, the public voted to accept this new political standard for denying confirmation of the relatively popular Obama's Supreme Court nominee.

The only reason for an opposing party to accept the nominee of a president from the other party is deference to the will of the people as a whole whom the president uniquely represents. But fewer than a quarter of Americans who support Gorsuch do so because they trust Trump to nominate a Supreme Court justice who will "do a good job." Meanwhile 52% of those who oppose Gorsuch say they oppose him because they do not trust Trump to make such a nomination. From right out of the gate Trump has remained on course to be the most consistently unpopular president in US history by a large margin. Going into the week of the Gorsuch vote, Gallup showed Trump had reached a new historic low point. In addition, Democratic voters are generally in an exceptionally negative mood about compromise with Trump on anything. Trump's Supreme Court choice therefore deserves no deference by Democratic politicians whatsoever, even under the old rules.

Even if Trump did represent the legitimate will of the majority, rather than the fraudulent product of a corrupt and broken political system in which he lost the popular vote, the new standard for confirmation honestly acknowledges that a highly politicized Supreme Court majority regularly makes highly political decisions on the basis of their own political biases rather than of any clear text in the Constitution. Deference based on process concerns have therefore yielded to politics. The battle over Gorsuch is because of his politics.

Behind his facade of "shrewdly calculated innocence," not to say " smarmy," entitled, and "condescending" arrogance, this is a fact that Gorsuch himself lied about in his confirmation hearings. He falsely claimed: "There is no such thing as a Republican or a Democratic judge" when in fact the Supreme Court is currently divided 4-4 between Democrats and Republicans in political cases. The very importance of Gorsuch to Republicans that would cause them to go so far as to overturn the Senate's venerable filibuster rule against their own long-term interest is that he will be a reliable political tie-breaker in the political decisions made by the judicial supremacist and plutocratic faction of the Court.

Gorsuch has never done anything significant for the country. Plutocrats care nothing about his ability to discern and apply rules of law. He is simply a sure fifth vote for plutocracy who has the elite certifications that pass for qualifications in a plutocratic era. His seat on the Court is worth spending millions to achieve because the payoff will be counted by the plutocracy in billions.

In response to questions at his hearing, Gorsuch deceitfully refused to acknowledge the right-wing political decisions that he planned to make. His stance, which he claimed to be rooted in judicial ethics, rejected the right of the American people to know what an extreme right-wing Swamp ideologue Trump has nominated. It denies that, before he takes his seat and begins improperly enacting his ideology into law alongside the four other right-wing extremist justices, the people have a right to know whether and how he satisfied the anti-abortion and other litmus tests that Trump promised to apply to this nomination. Due to Gorsuch's stonewalling, the hearings made little news, and therefore relatively little is known by the broader public about Gorsuch compared to the profound importance for the whole public of his appointment to the Court.

Republicans want and have found a reliably extreme right-wing justice. He is an adherent of and propagandist for the judicial supremacist ideology, which pretends, as a cardinal premise, that judges are not political but rather have some special, exclusive and highly selective powers of discernment of "original" constitutional intent that empowers them to make profoundly consequential political decisions contrary to the will of the overwhelming majority.

Republicans, as have oligarchs throughout American history, correctly consider this judicial supremacist ideology essential for maintaining the 1% plutocracy which they serve. Plutocrats therefore generously fund organizations to find and certify political judges like Gorsuch. The purpose of these organizations is to avoid any more Souters or Stevens, who were conservative Republican justices who upheld the Constitution.

The plutocrat-funded organizations lobbied for Gorsuch after spending millions and lobbying just as forcefully against Garland who had even better establishment "qualifications" than Gorsuch. (For example, unlike Gorsuch, both Obama and Garland were members of the prestigious Harvard Law Review in law school.) An "expert" for one of those organizations stated the new confirmation standard: "If you truly believe that a particular nominee would wreak havoc on America, why not do everything you can to stop him?" "Wreak havoc" for such a lobbyist means "overturn the plutocracy" and put their lobbyists out of work. Republicans worried about "donor backlash" if they voted against the plutocrats who bribe. Therefore they blocked the merely conservative Garland in favor of their more reliably plutocratic Federalist Society nominee which the plutocracy supports.

The new political standard for denying a president's choice does not require any Supreme Court nominee to even be considered who does not meet the Senate's political test. The decision by Democrats to block a nominee is therefore not a reflection on the personality or elite credentials or other "qualifications" of the nominee, since Garland's were beyond any doubt at least as exemplary as are Gorsuch's. The decision focuses solely on the politics of the nominee, particularly on the essential issue of the country's failing democracy and its dysfunctionally ruling plutocracy.

This rule change cannot be put back in the bottle by idle wishful thinking that "the U.S. Supreme Court should be above politics." Ignoring politics during the confirmation process cannot put the Supreme Court "above politics." In an era when Congress allows the Court to exercise powers of judicial supremacy so it can mandate corrupt plutocratic rule, one has to be blind to avoid recognizing that the Court is already mired deep in the muck of such politics.

Although Trump is unpopular by any historical standards, liberal Senators like King, Coons or Leahy had been nervously reluctant to block his nominee by applying the very same new political standard to Gorsuch that Republicans applied to Obama's nominee for the seat, Garland. As Politico wrote "despite anger from the Democratic base that senators have cowered from a fight against Trump's high-court pick, the sole strategic decision the Democratic Caucus has made about Gorsuch ahead of his confirmation hearings [was] to make no decision at all."

Predictably, the plutocratic wing of the Democratic party produced supporting propaganda for any failure to embrace a filibuster strategy as a party, i.e. effectively, based on the new political standard. For example the Bezos Post published an article worrying about "judicial independence" and warning about the "danger of a politicized judiciary" if the Democrats should adopt the new standard by doing everything they can to stop Gorsuch under existing Senate rules for political reasons. This Post approach would ignore not only that the new standard represents an honest acknowledgment of the reality that the Supreme Court is already fully politicized but also that the politicized Court is fully weaponized by its judicial supremacy ideology ("judicial independence") for unrestrained class warfare on behalf of plutocrats.

Ignoring the plutocratic politics of a Gorsuch at the time of confirmation in favor of considering his elitist "qualifications" as the solely dispositive factor will only make the plutocratic supremacist faction on the Court even more brazenly political. The Senate cannot "check and balance" the current illegitimately politicized Supreme Court by simply ignoring that fact.

Nevertheless the usual party operatives argued, along with Republicans, that Democrats should apply the old deferential standard rather than the new political standard. Because they opposed the new standard, the argument goes, Democrats should therefore defer to Trump's nominee under the old standard, which recognized the presidential role of speaking for a majority. As shown above, Trump does not now and never has spoken for a majority of Americans. But even if he did, arguing that Democrats should follow the old rule is like arguing that Democrats who oppose Republican tax reductions should, pay their own taxes at the old higher rate because they opposed enactment of the Republicans' reductions.

Any Democrats or their apologists who pretend that the old deferential rule is still operative simply do not want to acknowledge that their vote on a Supreme Court nominee is inherently a political vote in this plutocratic era. To do so would strip them of one excuse for giving their usual decisive support to the plutocracy that they actually serve behind their window-dressing of liberal principle or Senate tradition. By way of such defective reasoning, the Party's betrayal, which started with Manchin, Heitkamp, Donnelly and Bennet, could conceivably have spread to just enough more of their party necessary to put Gorsuch on the Court by enabling cloture.

These defectors and their apologists will argue they are making a responsible and principled non-partisan vote about character and credentials to be a justice, as well as preserving the traditional filibuster rule. For example Donnelly explained that he thinks "[Gorsuch] is a qualified jurist" while Heitkamp claimed to be "very worried about our polarized politics and what the future will bring, since I'm certain we will have a Senate rule change that will usher in more extreme judges in the future."

In the current corrupt Kabuki politics, check your wallet when any politician pretends to be non-partisan and principled. It is Republican Senators and Democrats like Donnelly and Heitkamp, all well-disciplined by money politics, not the rule change, that will "usher in more extreme judges," just as they have for two generations. Democrats failed to filibuster Alito who was just as obviously a far right ideologue as Gorsuch. In her shell-game reasoning Heitkamp contends that by voting to confirm an extreme justice this week she is somehow stopping future extreme judges. It did not work out that way with Alito when Democrats defeated his filibuster.

A variation of this kind of propaganda can be paraphrased as saying that the Democrats should defer to a permanent extreme right-wing majority by confirming Gorsuch for Scalia's seat. The argument goes that Democrats should only contest the next open seat, which is likely to be vacated by one of the current minority of liberals on the bench. Such apologists claim that the "next confirmation fight will be Armageddon," not this one. This is the rationale that Coons seemed to adopt without disclosing any logic by which his support for Gorsuch now could affect any future vote on a subsequent supposedly even more important right-wing nominee. Coons apparently thought he can persuade his constituents of the attractions of birds in the bush with this argument. It could not do so in 2017, when politics won the argument.

The plutocratic faction of the Democrats that uses such lame excuses prefers to be ruled by a permanent majority of plutocratic judicial supremacists. They can then blame on the Constitution the plutocracy that pays them to vote for plutocratic policies. To disguise their role, at key historic junctures like the Gorsuch nomination, they pull out of the air such idiotic "principles" as these to justify conceding power to Republicans as proxies for plutocracy.

They warn of the bogeyman that Majority Leader "McConnell will almost certainly launch the so-called 'nuclear option'" to confirm Gorsuch by repealing the filibuster rule. They argue that this is a reason the Democrats should not filibuster Gorsuch and concede to McConnell without forcing him to repeal the rule. But others speculate that the confirmation "could still all fall apart" due to lack of support for changing the filibuster rule. This flawed tactic of preemptive capitulation maintains that it will be useful to keep the Democrats' powder dry for some mythical future when they will finally fight for progressive values. Thus they would paradoxically preserve the undemocratic filibuster rule by never using it themselves. Their presumption is that if they do not force the Republicans to vote to repeal the filibuster rule for Gorsuch then Republicans will allow the rule to stay in place for the next nomination contest, which is the real "Armageddon."

This is complete nonsense, of course.

First, a rule that cannot be used for fear it will disappear if it is used had no value worth preserving. The Gorsuch appointment threatens to deliver the decisive vote on the pivotal question of legalized corruption that Republicans are willing to fight for. The plutocracy has clearly prioritized getting Gorsuch on the Court. There could be no more important use of the filibuster rule than to restore democracy by denying anyone else like Gorsuch a seat on the Court.

Second, even if the false assertion were accepted as true, that the next appointee will be even more important than Gorsuch for entrenching plutocracy, then Republicans would only be even more likely to repeal the filibuster rule for that next appointment, rather than less likely. If Democrats fail to oppose cloture this time, this same "incoherent argument" would require them to unilaterally disarm in all future contests in the same interest of preserving the abstract existence of the rule, rather than using it. Whether now or later, whenever the Democrats filibuster to deny a Trump Supreme Court nomination the Republicans will be forced to choose between the continued existence of the filibuster rule for their own long term interest or marshalling the votes to sacrifice it in the interest of having another extremist Federalist Society justice reconstitute the Roberts Court's plutocratic majority.

Third, by not ever using the filibuster rule themselves, Democrats would only preserve the rule for use by Republicans when they are next in a minority.

Fourth, further demonstrating their continued failure to serve as an authentic opposition party, by deploying such logically empty excuses for serving plutocracy, Democrats will continue to lose the support of voters at the polls in 2018 as they become seen by even more voters as a party of corrupt and hated hypocrites incapable of defending the political values they espouse at election time on the basis of unpersuasive reasons of process. Further election losses would make it even less likely that Democrats would be able to stop future extreme right-wing Trump nominees, whether or not the filibuster rule survives Gorsuch.

Historic Importance

The fact that Republicans are willing to take clear aim and threaten to shoot themselves in their own foot by abolishing the filibuster rule shows the profound significance of the Gorsuch nomination to them. There has never been, at any previous time in American history, a Supreme Court nominee who would be worse for the republic and better for the oligarchy than Gorsuch would be right now. No single appointee in the past would have had a more predictably decisive impact on perpetuating oligarchic rule and thereby drowning democracy in the swamp of systemic plutocratic corruption that now dominates both political parties as a result of Supreme Court decisions.

The Roberts 5 constituted a menace to American democracy for a decade as the most plutocratic, corrupting, right-wing Court majority since Dred Scott. Their profound damage to the Constitution, by 5-4 decisions in cases like Shelby County's evisceration of the Voting Rights Act on the basis of antebellum pro-slavery legal theory and in their line of reviled pro-corruption decisions including Citizens United and McCutcheon, was interrupted only by Justice Scalia's death last year. None of the Roberts 5 responsible for these rulings had either inadequate legal credentials -- being mostly graduates of the usual elite law schools -- or otherwise defective resumes. Yet they have all committed what Chief Justice John Marshall called "treason to the Constitution" for political advantage.

The current Court's 4-4 deadlock between this extreme right-wing Republican political faction and moderate Democratic liberals has provided the single bright spot in the failed politics of 2016. The ideologically neutralized Supreme Court has created some space for the more ideologically balanced lower federal courts to furnish some geographically scattered respite for relative political sanity, compared to the rest of the federal government.

One of the more ill-informed arguments by plutocratic liberals is that an ideologically deadlocked eight-justice Court is unsustainable or otherwise institutionally dysfunctional. The truth is just the opposite. The current partisan deadlock has removed from the Court's docket the most politicized cases that typically lead to the most illegitimate judicial supremacist decisions. The past year has witnessed relief from rule by an illegitimate juristocracy as the Court, due to circumstances not inclination, tended to remain within its proper constitutional powers.

This modest little flame celebrating the survival of the Constitution's checks and balances flickering against the descending political darkness will be extinguished if Trump is allowed to fill the Scalia seat with yet another extreme and effective right-wing political operative straight out of the plutocratic Federalist Society swamp of ideologues. Neil Gorsuch would occupy the right wing of the already extremely right-wing Roberts Five.

Gorsuch is even worse than Scalia and Roberts, because he may be smarter, a better writer, and personally more polished in service of his right-wing politics. It would be difficult to find a worse nominee to break this Court's current ideological impasse. He represents a tiny 1% demographic of plutocrats. By allowing such a nomination the Democrats would only compound Obama's feckless or fake strategic failure to fill the seat with a clearly progressive recess appointee when he had the chance.

Swing Issue

Of the Democrats who know enough about him to voice an opinion on Gorsuch, nearly 4 in 5 are either somewhat or strongly opposed to him. Of these, 61% know it is very important that he not be confirmed. Any Senator who, like Manchin, Heitkamp, Donnelly and Bennet, votes for cloture needed to understand in advance that he or she is going to face a campaign by progressives to remove him or her 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, other than for war or for another similar Supreme Court nominee, could be as consequential as the Gorsuch cloture vote.

Its plutocratic faction has already seriously undermined the Democratic Party by taking the risk of nominating the weaker presidential candidate in 2016 in order to preserve their corrupt control over the party. The Democratic Party extorted support from independent Sanders voters in the general election for its corrupt plutocratic candidate on the grounds that loss of the Supreme Court was too important a risk to take with their votes. The plutocracy faction could risk turning the presidency over to a clown by nominating their weakest, most disliked candidate; but Sanders voters who were cheated out of the nomination and thus victory in the general election -- the argument went -- should nevertheless not risk losing the Supreme Court by refusing to support the candidate they had opposed.

How they handled this Supreme Court appointment on which they campaigned would clearly define the Democrats' utility as an opposition party. If they could not muster the votes to defeat cloture for Gorsuch and any other nominee like him, then they would not be worth retaining in the Senate at all. The defection of four Democrats made it easier for Republicans to abolish the filibuster. They deserve pushback from progressives in this new world of a better informed electorate

It would have been better to clean the slate and remove some or all of them in favor of a new, authentic, opposition party had Democrats been incapable of rising to serve the public interest on this historic occasion. The way Democrats usually serve the plutocracy is to lose to it by a single vote. It is significant that this time seemed to be different due to public awareness of the importance of the Gorsuch nomination.

Even the inexperienced Trump knew 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 than usual about this particular appointment. Beyond Sen. McConnell's creation of a new political confirmation standard in 2016 for this very reason, other Republicans also reflected the same knowledge about the historic importance of this seat and of the Gorsuch appointment to fill it.

The leading right-wing activist group targeting the Court's membership announced they would spend $10 million of dark money on ads supporting Gorsuch. For the first time the plutocracy hired a prominent Wall St. lobbying firm to advance what they view as this "incredibly important nomination." In his hearings Gorsuch refused to admit knowledge of the source of this money.

This zeal on the right is unsurprising because the Gorsuch nomination 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, at 49, is also relatively young for a Supreme Court Justice. If the average age of departing justices is any guide, Gorsuch will plague Millennials throughout most of their working lives, contributing decisively to their economic inequality.

Real transfer of money is at stake in his appointment. As data from one study shows, "through neoliberal income re-distribution policies, 1980-2014 ... every nine adults in the bottom 90% contributed a total of $61,200 to each individual in the top 10%" in 2014, for example, when compared to what they would have received if everyone had shared equally in economic growth that year. Those policies enabling economic plunder by plutocrats were bought by them from corrupt politicians within the plutocratic system maintained by the Supreme Court. The profits made from that system pays for those ads to support Gorsuch in order to ensure that this class-warrior will help perpetuate the corrupt system.

Democrats who claim this is not the "Armageddon" nomination either do not care about the ripped-off 90% or are pretending that they know better than the Republicans who are mounting "the most robust campaign for a Supreme Court nominee in history." The reason Democrats take the contrary position is that the money invested by plutocrats in this campaign will finance negative ads aimed against vulnerable Democratic senators who are therefore inclined to invent excuses to lay low on the Gorsuch nomination, as they do on anything else important to the plutocracy. The two earliest traitors who need to be primaried in 2018 are Manchin (D-WV) and Heitkamp (D-ND). By taking themselves out of the plutocrats' cross hairs relatively early, they transferred the target to the backs of other vulnerable Democrats, two of whom, Donnelly (D-IN) and Bennet (D-CO), quickly succumbed. They have undoubtedly not just been paid for their votes, but even for the timing of announcing their vote, which would have had less impact if delayed until the day of the vote.

When Manchin justified his betrayal of party loyalty on grounds that "I have not found any reasons why this jurist should not be a Supreme Court justice," he answered the wrong question. That statement could apply to nearly anyone. The problem is to find a single reason meaningful to the economic interests of 90% of his constituents why Gorsuch should be a Supreme Court justice. What has he done of any remote service for the 90% who have been robbed by a system rigged in the Supreme Court to work against them?

Progressive and Independent voters who punished Democrats in 2016 for nominating an influence peddler like Clinton to lead the nominal opposition party let it be known that a cloture vote for Gorsuch, or for any other future Federalist Society nominee, will be a similar deal-breaker for the Senate Democrats. The adverse impact of a Gorsuch appointment on further entrenching plutocratic corruption will be even greater than would have resulted from electing another Clinton for four years. Gorsuch is a worse long-term threat to democracy than Trump. Just as Clinton was vulnerable in 2016, Democratic Senators from an unusually vulnerable 25 states are up for reelection in 2018.

Progressives should make it clear they will not just stay home this time, as is reported to have been a decisive factor in 2016. They needed to find a way to give collective notice that they will vote in the primary and general election to defeat any Senator who fails to filibuster Gorsuch. This is too important a juncture in history to employ half measures. The full measure requires a strategy to reliably swing the primary and general elections away from those Democrats who provide no reason for progressives to support them at this historical juncture decisive to the future of democracy.

Senator King is one of those 25 up for reelection in 2018. Maine voted Democrat in 2016. On March 5, King faced a New England town-hall crowd critical of his vacillation about their demand that he prevent Gorsuch from becoming the fifth horseman needed to resume the Roberts Court ride toward the plutocratic apocalypse. Their demand helped to ultimately carry the day, persuading King that there may be consequences at next year's polls if he voted for cloture.

The right vote to rescue democracy from the swamp is "no" on cloture for the Gorsuch filibuster, and then also "no" against changing the filibuster rule. Any Senator who has a different priority on these two votes than rescuing democracy from the current corrupt Swamp of plutocracy should be removed to make way for progress.

Independents fled from Clinton, thinking Trump was a better bet to drain the swamp, or at least no more competent in filling the swamp than was the well-practiced Clinton ring. Even beyond his fake promise to drain the swamp, as Ralph Nader pointed out Trump "hijacked the progressive agenda." But now that Trump has revealed his true swamp colors by selling out that agenda with his uniformly plutocratic nominees and corporate giveaways, these voters who now know they were lied to by a con-artist and that they are being consistently ripped-off by Trump policies on issues from his tawdry personal conflicts of interest, taxes and health care to trade and internet privacy should make the same demand about Gorsuch from the Republicans. They would only need to influence 2 or 3 Republican Senators from swing states against abolition of the filibuster in order to make all the difference. Flipping any Republicans would also make the Democrats' betrayal less tenable when they are primaried.

Restoration of democracy should be a non-partisan American principle. Voting for cloture and abolition of the filibuster is the most significant possible way right now for corrupt politicians of both parties to keep filling the Swamp. Such a vote by Democrats would only further the Party's self-destructive free-fall toward oblivion. Any Democratic votes enabling the Gorsuch appointment is evidence that the existence of two plutocratic parties has become as redundant as were two pro-slavery parties in 1854-56. One of them must go in order to clear the way for progress. When they rigged the 2016 nomination against Sanders, the plutocracy Democrats unnecessarily made the general election a toss-up as to which party would be cleared away. Democrats lost the toss. By effectively filibustering Gorsuch they may just have bought a reprieve for their continued existence through to 2018.

Unstrict Construction

Americans generally comprehend the Roberts Court's serial violations of the constitutional separation of powers in its pro-corruption decisions. The Roberts 5's political decisions imposing a corrupt plutocracy on the country by sweeping invalidation of a variety of state and federal anti-corruption laws remain in force under the deadlocked Court. These rulings 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 Republicans like to call a "strict constructionist" to take Scalia's seat.

The Republicans' contrarian, if not incoherently subjective, definition of "strict construction" is more nearly the opposite of its historic meaning when Nixon started using the term in the 1960s to describe Republican justices. At that time the term invoked justices like Oliver Wendell Holmes, or Felix Frankfurter, who followed venerable constitutional rules -- such as "the doubtful case" rule and the "political question" doctrine -- designed to prevent the Court's exercise of judicial review powers for political purposes. Such justices set the standard for maintaining proper democratic deference to the elected, political branches of government.

Whether or not Nixon and virtually every Republican after him who used this "strict construction" formula to describe their preferred judicial nominees were familiar with the separation of powers rules, these traditional rules defined the intricate boundaries between the narrowly prescribed circumstances for legitimate judicial review of the constitutionality of legislation and the far-too-frequently exercised judicial supremacy over legislative matters, like election and anti-corruption laws, that fall outside the legitimate scope of the constitutional powers assigned to the judicial branch.

It is the legislature that was given the constitutional power (Art. I, Sec. 4&5)) to regulate and judge elections for the purpose of assuring that elections do not deteriorate into instruments of corruption, as they clearly have under the Supreme Court's "money-is-speech" logic.

The traditional separation-of-powers rules provide the only legitimate source for guiding the Court in giving any objective application to the concept of "strict construction." This phrase and its various cognates can only meaningfully refer to strict judicial adherence to the traditional rules that deny the judiciary constitutionally illegitimate political powers to extract new law from vague political principles found in the Constitution that guide political, not legal, matters. Republican appointees like Scalia, Roberts, Alito and their judicial-supremacist predecessors and colleagues have exercised such political powers since 1976 in blatant violation of the separation-of-powers rules. See Keck (2005). The founders considered such violations the straightest path to tyranny.

There is no doubt that Gorsuch will vote to continue the tyranny caused by plutocratic corruption. A true "strict constructionist" like, for example, the former Justice Stevens would not overturn anti-corruption legislation. Stevens supported the limitation that McCain-Feingold placed on corporate independent expenditures, which was overturned by the judicial supremacist Citizens United (2010) majority. He also supported that same law's regulation of the unlimited expenditures on sham corporate-issue ads, which was overturned in the even worse, though lesser known, judicial supremacist FEC v. Wisconsin Right to Life, Inc. (2007).

Gorsuch is the opposite of a "strict constructionist" because like any other Federalist Society operative he will vote eagerly to overturn any such laws that significantly threaten the rule of plutocracy, by inventing any excuse necessary for that purpose. In plucking constitutional doctrine out of thin air to reach his political goals, Gorsuch will likely prove even more adept than Roberts, the current master on the Court of that evil art.

For over 40 years Republicans have failed to find an accurate replacement for Nixon's "strict-constructionist" concept to invoke the plutocratic politics they want their justices to actively serve in the current era of systemic plutocratic corruption. The term was suited to the Republican status quo strategy of a previous era, when corruption occurred at the individual level rather than system-wide due to Supreme Court rulings. But the term no longer describes their changed criteria for selecting activist right-wing plutocratic justices necessary to maintain the present systemically corrupt plutocracy legalized by the activist Court.

If they practiced truth in labeling, Republicans would describe their new ideological criteria for selecting justices which is enforced by the Federalist Society as "plutocratic judicial supremacy." This includes in one phrase both of the governing ideologies for creating a government on the auction block to plutocrats under the aegis of unchallenged Supreme Court pro-corruption rulings.

Questioning of Gorsuch in the confirmation hearings should have probed this paradox of terminology to determine which of these terms best fits Gorsuch's own judicial philosophy. But with few exceptions the Democrats generally conducted lackluster questioning of Gorsuch that lacked any sophisticated understanding of the Court's plutocratic jurisprudence.

Judge Gorsuch is known for taking a distinctly judicial-supremacist view of executive-branch authority in his criticism of what is known as the "Chevron" doctrine. This is a somewhat significant separation-of-powers rule that requires judicial deference to executive agencies' expert interpretations of their governing statutes. That Gorsuch would give somewhat less such deference than the governing rule advises is not of any great specific importance to the republic, depending on the context. Because the Federal Election Commission is a dysfunctional agency,the Gorsuch doctrine would have little impact on its role in the corrupt system.

But Gorsuch's view of judicial supremacy over the executive branch does provide an indication of his tendency toward judicial supremacy in other areas, which is of very great general importance. The core political problem responsible for the republic's decline is excessive, unchecked judicial supremacy over the legislative branch on matters of plutocratic corruption. Judicial supremacy, the opposite of strict construction, enabled the Supreme Court's alchemical conversion of money spent by plutocrats for the benefit of influence peddlers into constitutionally immunized speech -- by no more than the Court's own political diktat. This widely unpopular legislation from the bench is what has systemically corrupted politics in the U.S. This corruption has taken much of the pressure off the Court to serve the plutocracy in less systemic matters, since corrupt politicians now handle that part of the influence-peddling business.

From a middling democracy with a great deal of individual political corruption in high places, but nevertheless enjoying historic growth of both economic equality and political equality prior to 1976, the Court's Buckley v Valeo (1976) decision and its progeny have since then turned the country into a systemically corrupt plutocracy with the many dysfunctional symptoms that entails.

Among other symptoms, the plutocracy's growing economic inequality and attendant social hierarchy has caused a new civil-rights crisis that diverts democratic energies into various symbolic pressure-release valves known as identity-politics. This is how the plutocracy wing of the Democrats creates diversions from popular focus on its own corruption as the priority political issue. Democrats who deny that Gorsuch's plutocratic judicial-supremacist ideology is the priority issue need to be run out of the party. Their power to filibuster this nomination is the most direct and immediate means for them to "check and balance" judicial supremacy by sending a clear message that the historic levels of illegitimate political activity by the Supreme Court in violation of the separation of powers is no longer being ignored by Congress or by the people.

Monetizing Speech

The Court's bizarre judicial-supremacist alchemy of turning corrupt money into democratic speech has, ever since Buckley invented it, caused, in addition to wide political and economic disparity, numerous impending vectors of social and economic collapse. Catastrophic threats loom over all areas of public life and the commons that have been reduced to dysfunctional profit centers for the ruling plutocracy. These profit centers include financializing the economy for Wall Street, globalizing trade for Wal-Mart, despoiling the environment by industrial predators, commercializing health care for insurance and big pharma, carbonizing the climate for petrochemical profit, and war-profiteering for the MIC, to name just a few of the major sources of plutocratic investments in politicians. These investments buy the issuance of a variety of official licenses to kill and steal. The influence peddlers and their corrupt duopoly party make it all possible for a price, without regard for future consequences.

This catastrophic legalization of political corruption since Buckley, enforced and expanded through a series of largely 5 to 4 Supreme Court decisions, now hinges upon this single appointment of Justice Scalia's replacement. As a New England Senator Sheldon Whitehouse said recently, "if we can solve the problem of special-interest money in government a lot of other things start to get right very very quickly." Conversely a Neil Gorsuch appointment to reconstitute the plutocratic Roberts 5 will only perpetuate and further entrench the problem of special-interest money, thereby assuring that many "things" go more wrong even more quickly.

There are few paths away from plutocracy that do not lead through the Supreme Court and its bizarre theory of free speech. It is the Swamp's official gatekeeper and pro-corruption hydrologist assuring the continued flow of money from plutocrats to influence peddlers.

Gorsuch clerked for perhaps the most consequential movement conservative to preside over a lower federal court, Chief Judge Sentelle. Among several similar pro-corruption cases which he managed as Chief Judge of the influential DC Circuit, Sentelle most significantly wrote the SpeechNow.org (2010, en banc) decision that released unlimited SuperPAC spending. Because SpeechNow.org legalized all independent expenditures from any source, this was actually the large nail in the coffin of democracy for which Citizens United incorrectly gets blamed by many, including Bernie Sanders. The narrowest interpretation of the Citizens United ruling would only have legalized corporate independent expenditures of a negligible amount. It was Sentelle who converted Justice Kennedy's sweeping and unsupported dicta into a ruling that stripped the government of power to place any limits on independent expenditures, whether from for-profit corporate treasuries or elsewhere, as an essential element of "freedom of speech."

There is no doubt that Gorsuch, like his judicial mentor, will vote on the Supreme Court in favor of continuing and expanding the Buckley line of plutocratic decisions. He will therefore side against the four dissenting judges who have generally opposed those decisions in cases like Wisconsin Right to Life (2007) (legalizing sham issue ads), Citizens United (2010)(independent corporate expenditures), Arizona Free Enterprise Club (2011) (gutting public funding), American Tradition Partnership,Inc. v. Bullock (2012) (per curiam) (denying state sovereign rights and dismissing the importance of proven facts of corruption) and McCutcheon (2014) (immunity of political parties for their institutional conflicts of interest caused by undeniably influential multi-million-dollar aggregate contributions).

In Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014), in a concurring opinion, Gorsuch flagged his support for the "money-is-speech" alchemy by endorsing the following transformative propositions: "the act of contributing to political campaigns implicates a 'basic constitutional freedom,' one lying 'at the foundation of a free society' and enjoying a significant relationship to the right to speak and associate -- both expressly protected First Amendment activities." This is the language used by plutocratic judicial supremacists to turn corrupt money into protected speech by nothing but a talisman of empty words, an in denial of proven facts of its cause of systemic corruption. Gorsuch invoked these words in a case that evaluated a doctrinal euphemism for judicial-supremacist power. The "various tiers of scrutiny" doctrine is used to justify supremacist protection, in this case, to the judge-made fundamental equal "right" to make corrupt political investments in violation of state anti-corruption laws.

Monetizing the First Amendment in this manner rationalizes the judicial legalization of systemic conflict of interest corruption by which plutocrats corrode and topple popular sovereignty. Gorsuch will break the current deadlock on the Court over the legitimacy of monetizing the First Amendment.

Confirmation Kabuki

At the same time Gorsuch endorses such judicial-supremacist views to usurp power from the elected branches to decide what are clearly political and not judicial questions under the venerable separation-of-powers rules, he and his plutocratic supporters paradoxically claim he is a "strict constructionist."

Like CJ John Roberts and the fraudulent umpire meme he concocted to deceive the public about his judicial-supremacist ideology, Judge Gorsuch wrote his own fake "strict constructionist" ritual vows for his nomination ceremony. At his first opportunity Gorsuch took the pledge in public that "it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people's representatives."

What could possibly go wrong with such a judge? Everything, if he is as pathological a liar as the President who nominated him. This now-ritualized demurral by all judicial-supremacist nominees does not fairly describe what Gorsuch has done when endorsing the supremacist concept that money is speech, or granting corporations religious rights in Hobby Lobby, or in deciding other cases restricting women's rights, or in ruling for corporate interests. Serving plutocracy and creating identity hierarchies by discriminatory rulings are inseparable strategies for a politicized right-wing operative like Gorsuch. If Gorsuch actually intended to follow his strict construction pledge he would have no value to the plutocrats who are placing him on the Court.

The paradoxical labeling of a judicial supremacist as its opposite, a "strict constructionist," has been going on a long time. George Bush II sang from this same dissonant hymnal for his second of two disastrous judicial-supremacist appointees. Bush claimed: "Sam Alito is a brilliant and fair-minded judge who strictly interprets the Constitution and laws and does not legislate from the bench." This is the same lie we heard about Roberts and heard from and about Gorsuch, who is cut from the same supremacist cloth as Alito.

The Democrats' Minority Leader, Sen. Charles Schumer, long ago figured out the stealth nomination fraud these supremacist judges practice. He promised at that time to prevent the Constitutional harm the Roberts faction would cause if "joined by just one more ideological ally. I will do everything in my power to prevent that from happening," he said. Now that Schumer has the power to enforce solidarity by the Senate Democrats against Gorsuch, a great deal of the nation's future turns on his keeping that promise. Any failure by Schumer to effectively enforce party loyalty cannot be excused by ignorance.

One problem in making their case against abolishing the filibuster is that the Democrats failed to mount an effective challenge to Gorsuch in the hearings. That would have made it more difficult for right-wing Democrats to bolt to the Republicans on cloture, which makes it easier for Republicans to abolish the filibuster on grounds that it has "bipartisan support" for Gorsuch anyway.

Safe-seat Democrats on the Judiciary Committee like Sheldon Whitehouse (D-RI) did not explore deeply enough with Gorsuch what he thinks a strict constructionist is and how the concept relates to judicial-supremacist decisions like Buckley and Citizens United. The American public at least had a right to learn about who this justice would serve. The voters should understand that the Democratic defectors are consenting to another judicial supremacist to rule over them, and perpetuate plutocracy.

Several such questions that should have been presented to Gorsuch would be:

1. Judge Gorsuch, you have been called a strict constructionist. What does strict construction mean to you? Are you consistently a strict constructionist, or only when the political results suit you?

2. Justice Byron "Whizzer" White described the Supreme Court's ruling in Buckley as enacting the "maxim that 'money talks,' that money is speech and that limiting the flow of money to the speaker violates the First Amendment." Is that ruling an example of strict construction of the Constitution?

3. Gorsuch clerked for Justice White and called him "one of the smartest and most courageous men I've ever known" who "brought me up in the law." If Gorsuch were to find that he agreed with the reasoning of his mentor, as expressed in White's persuasive dissent from Buckley, would Gorsuch feel free to vote, in a case that sought to rely on Buckley as precedent, to overrule that decision as wrongly decreeing that "money is speech"?

4. Does Gorsuch agree with White's strong criticism of the rationale of the majority in Buckley that regulation of campaign finance is unconstitutional merely because it reduces "communication made possible by" money? Is White not correct in arguing that this rationale is so absurd that it could also be used to overturn tax laws or nearly any law that can be argued to leave less money on the table that is supposed by a judge to otherwise be available for buying speech? That money might take the form of illegal proceeds from many kinds of crime, not just from the crime committed when campaigns receive money in violation of campaign-finance laws in such amounts that reasonably can be understood to create conflicts of interest.

5. Did anyone other than Robin Hood and Buckley plutocrats ever make such an argument that any crime can be excused by the use of its proceeds for some judicially approved conduct? Does Gorsuch disagree that no criminal law should be invalidated simply because the proceeds of the crime might be spent on something the Court endorses, like paid political propaganda, which was itself never even constitutionally protected until Buckley?

Democrats asked none of these questions.

Trumpophobes for Plutocracy

Sen. King tried out a new songbook on his constituents when he gave Gorsuch credit for "independence," as a euphemism for judicial supremacy. He tried convincing Democrats at his town-hall meeting that judicial "independence" is a good thing, if used, in violation of the Chevron rule, to instruct the Trump administration how to govern in minor ways.

This provides a fresh example of how outrage against Trump is being exploited by Democrats to divert attention away from addressing, as the Sanders' campaign tried to do, the priority progressive issue of bi-partisan corruption of politics. The Democrat wing of the plutocratic duopoly is playing its usual game of expecting the flight of voters in disgust away from the plutocratic Republican wing will return those voters to their own plutocratic Democrat embrace.

Fear of Trump cannot justify supporting those liberals whose entrenchment in the same political corruption actually caused Trump's victory. The failure of Democrats to acknowledge Clinton's perceived weakness on the voters' priority concern of "swamp draining," a corrupted DNC process under undemocratic primary rules, and dishonesty about Sanders' known superior strength against Trump with Independent and Progressive voters, was responsible for the unpopular Trump's election. Why should those who deliberately took the risk of electing a clown as president in order to avoid a progressive president be rewarded without first performing a proper penance -- such as defeating Gorsuch?

By making the trial-balloon suggestion that Gorsuch's judicial-supremacist inclination to tell the executive branch what to do might justify his vote for cloture, King was overlooking, or deliberately distracting attention from, the one essential issue that Democrats hope swing voters will ignore. King would invite Democrats to discharge their anger against Trump with some possible relatively minor inconvenience that Gorsuch might cause Trump. But this would at the same time deliver Gorsuch's predictably fatal fifth vote for the exponentially more important issue of perpetuating the corrupt plutocracy in which both parties are mired due to the very judicial supremacy that King labels "independence." King offered this suggestion about relative priorities, paradoxically, to support Trump's own nominee.

King's strained logic demonstrated Chris Hedges' dictum: "The party elites know that if corporate money disappears, so do they." Their priority is keeping the system corrupt, which Gorsuch will do. There was no good reason for progressives not to vote against King and similar liberal "elites" if they had joined in placing Gorsuch on the Court by voting for cloture for such lame reasons as were offered by King, the Democratic traitors, and their supporting propagandists in the mass media.

Helping the extreme-right Roberts 5 run the executive branch in violation of Chevron would hardly be an improvement over Trump's running of it in any event. The Constitution's separation of powers requires that, like it or not, the elected executive should take political responsibility for running the executive branch just as the elected legislators should take responsibility for making the laws in the legislative branch. This leaves leverage in the hands of voters, where it belongs in a democracy, to kick out Trump and the politicians who support him who refuse to follow and enforce anti-corruption laws, and also kick out the legislators who refuse to enact those laws, including jurisdiction-stripping provisions designed to keep the Court out of politics. Allowing the Supreme Court to usurp such political power is a deceptive technique for politicians to avoid their responsibility for betraying the voters and serving plutocrats.

Under the separation of powers, unelected judges should, as recited in the fake Gorsuch vows, stick to judging and not concoct constitutional excuses and alchemical formulas to rewrite those laws or regulations for the benefit of plutocrats. This is why there have been developed since the earliest years of the republic elaborate separation-of-powers rules to prevent such judicial usurpation of political power, although those rules have been routinely ignored with impunity by supremacist judges like Gorsuch and his supremacist would-be colleagues.

As Jefferson rightly put it, the prospect of impeachment for such supremacist misconduct is "not even a scarecrow" to sitting justices who violate the separation of powers. Therefore ideological supremacists need to be identified and ferreted out prior to their appointment by "extreme vetting" and intelligent questioning in confirmation hearings. Any candidate who refuses to reject the most consequential judicial-supremacist ruling of this plutocratic era, Buckley, should simply be eliminated from consideration for the job as an absolute democratic litmus test required to give effect to the Article VI official oath to support the Constitution. If the politicians are unable to do it, then the people should do it by getting rid of those politicians, starting with Manchin, Heitkamp and Donnelly along with their Republican colleagues who support Gorsuch.

A "Biden rule" referendum for 2018

A successful filibuster of Gorsuch, coupled with a Republican failure to abolish the filibuster rule, would force Trump to resort to his depleting stash of political capital before trying to appoint another right-wing Federalist Society nominee. Since none could be worse than Gorsuch, who is top of their list, this should count as a victory.

Under continued pressure from progressives, Democrats might even commit to persist in the unlikely blocking of such an appointment through to the 2018 election. They could employ a cliff-hanging application of what Sen. McConnell still calls the "Biden rule." This might eventually force Trump to appoint a moderate justice. Or it might not, since the election map suggests a narrow but possible Republican path to a filibuster-proof 60-Senator majority, which would win them the largest Senate margin since the 1920s.

If Democrats continue marginalizing progressive voters and issues they may just help achieve that unusual feat of 60 Republican Senators as a result of their ongoing implosion as a viable party. Otherwise by continuing the fight, Democrats might win back some voters and prevent such a large Republican super-majority. As Lindsey Graham (R-SC) said, abolishing the filibuster "makes every Senate seat a referendum on the future of the Supreme Court."

An extension of Sen. McConnell's "Biden rule" for an additional six months or so beyond its original time period assigned by McConnell of one "election year" would permit a referendum on Gorsuch in November 2018. This extended application of the pretended "rule" would be justified by the fact that Trump blatantly lied to his voters about draining the swamp. Elections have consequences when campaign promises guide official actions. But Trump has so far done nothing but raise the Swamp, already helping corporations plunder his own voters in several ways, but most importantly by nominating Gorsuch.

The swing voters who elected Trump need to themselves decide whether Gorsuch is a swamp-dredging surprise instead of the swamp-draining nominee they were entitled to expect for the branch of government that built the swamp in the first place, and now guards it from any intrusion by either integrity or democracy.

Garland lost the comparable referendum that Sen. McConnell scheduled for him in 2016. That loss was justifiable since he, like Gorsuch, was also an elite-credentialed plutocrat who had signaled his support for plutocracy by actually signing on to Sentelle's opinion in SpeechNow.org.

Obama tried to put his own plutocrat nominee across in his slyly deceptive manner which is only stylistically different than Trump's approach of outright lying about the nomination of his own swampster, Gorsuch, as one who strictly interprets the Constitution. Now the fact that Gorsuch may even be an improvement on Garland with respect to some rights of criminal defendants can be alleged as a point in his favor, as if Garland provided a new lowered bar for liberal values for no other reason than Obama's imprimatur of him. This new low bar prompted the incredibly dumb proposal from a Democrat that it would be a compromise "deal" to agree to simultaneously appoint both plutocrats to the Court at one time.

The Garland referendum was held. His supporters lost largely because they were viewed as the servants of plutocracy that he also was. There should now be a Gorsuch referendum, whether Gorsuch is confirmed or not. If Democrats can stop, or delay any appointment until the 2018 election, they will have progressive support in that election to either vote against Gorsuch by voting Democrat or alternatively to reward their Senate vote against cloture. The Senators who fail to vote against cloture will not have progressive support, and should instead have progressive opposition.

Progressives need to remind Democrats that, either way, they have never succeeded in such elections over principle by capitulating to the right wing and continuing their 2016 program of alienating progressive voters. FDR expressed this lesson in 1940, which is even more applicable at this moment: "the Democratic Party has received the support of the electorate only when the party, with absolute clarity, has been the champion of progressive and liberal policies and principles of government. The party has failed consistently when through political trading and chicanery it has fallen into the control of those interests, personal and financial, which think in terms of dollars instead of in terms of human values."

Middle Ground

The strongest argument Republicans have made in favor of Gorsuch uses the classic illogic of a false dichotomy: if the Democrats defeat Gorsuch, they would not be willing to accept any judge Trump might appoint. This either-or proposition is not true. There is middle ground.

Gorsuch is a dishonest conservative, as King pointed out at last by calling him "not forthright." An intellectually honest conservative, not in the pocket of plutocrats and their Federalist Society, could well receive favorable treatment by Democrats. Compromise short of such a 2018 referendum -- or of course abolishing the filibuster -- would therefore be possible.

There exist many ultra-conservative judges who, like Gorsuch, would vote against, on "strict construction" grounds, the liberal precedents -- mostly on identity issues -- that they all dislike, or at least pretend to dislike in order to maintain the Republican plutocrat-cultural conservative political alliance forged in the wake of Buckley. But there are some of these who, unlike Gorsuch, would also have the intellectual honesty not to pretend that overturning anti-corruption laws is also "strict construction" of a Constitution in which no honest search can uncover any alchemical formulas for turning money into speech. Buckley used blatant shell game logic, even beyond that criticized by Justice White, to invent this bogus formula.

A book on constitutional interpretation by Harvard professor Adrian Vermeule, Judging under uncertainty: an institutional theory of legal interpretation (2006), suggests he might be the kind of conservative who has such integrity to consistently reject all forms of judicial supremacy, whether in service of liberal or conservative politics. Vermeule's book argues the case for an intellectually honest rule that would consistently prohibit judges from exceeding the scope of their expertise and proper function by interpreting any of the vague political concepts in the Constitution, whether they get political results they like under such a rule or not. Vermeule warns that "to license good decisions is to license bad ones as well." id. 280.

There are strong reasons for liberals as well as progressives to oppose Gorsuch. Senators like King initially tried softening up their liberal supporters to accept the lose-lose results of the kind of politics-driven Republican hypocrisy that Gorsuch represents. It would be worthwhile to make such Senators try instead to force Trump to accept a win-lose compromise. The kind of "strict constructionist" consistency that a Vermeule nomination would offer contains both a win and a loss.

Best-selling author Scott Turow has knowledgeably written in favor of just such a compromise in response to the Gorsuch nomination. He points out the hypocrisy of "originalists" such as Gorsuch in cases like Heller and Citizens United while arguing it may require sacrificing some liberal decisions in order to stop such judicial supremacist decisions.

Liberals would not like Vermeule. Even Seventh Circuit Judge Richard Posner, who is considered extremely conservative himself, has labeled "Adrian Vermeule ... well to the right." Vermeule, like Gorsuch, also clerked both for David Sentelle and was further groomed by one of the supremacist Roberts 5, Scalia. It is not clear how Vermeule would treat the contested constitutional rights of vulnerable groups. However Vermeule or another honest strict constructionist might agree with Posner's criticism of the Court's Buckley notion that "money is actually speech--that's all nonsense." This type of conservative could appeal to progressives who prioritize recovering democracy lost to judicial supremacist legalization of corruption, as well as to a realist like Turow.

By nominating Vermeule, or a consistent "strict constructionist" like him, Trump could satisfy both his right-wing base on the identity politics/culture wars issues while at the same time keeping faith with the "drain the swamp" swing voters who actually elected him, but who are now driving his favorability ratings as historically deep under Swamp water as Trump is proving to be.

Trump repeatedly said, "It is time to drain the swamp in Washington, D.C." and "end our government corruption." Trump thus deceptively invoked this priority progressive issue to make people believe that his actions would be guided by it. He even made this theme a centerpiece of his Inaugural speech in order to stanch the rapid flight of former supporters from his plutocrat-dominated transition. The only act that Trump even claims to have taken to keep his promise to "drain" actually dredged the swamp, by weakening an ethics rule about lobbying that was already in place.

The Con-artist in Chief pretended to have newly enacted a weakened version of the old rule which itself had no appreciable impact on stemming the deepening Swamp during the Obama years. Moreover Trump further changed that rule so that he "can exempt an official from the lobbying limits at any time, for any reason, with no public disclosure." Rather than draining any part of the Swamp Trump's own corruption binge could keep an army of special prosecutors busy.

Trump's promise to drain the swamp could not even begin if the Supreme Court's rulings that caused the systemic corruption in the first place -- by legalizing the money that creates conflicts of interest -- are only perpetuated and expanded by confirming Gorsuch. Gorsuch is therefore Trump's most blatant lie of all.

A win-lose nominee would be a compromise that Trump might consider in his own interest. As H.L. Mencken once said: "It is [a politician's] business to get and hold his job at all costs. If he can hold it by lying, he will hold it by lying; if lying peters out, he will try to hold it by embracing new truths." Trump's lying about draining the swamp makes him vulnerable with his own voters. They could force him to embrace new truths by punishing in 2018 any Senators who support Gorsuch.

A win-win for both liberals and progressives in this nomination would require the unlikely feat of Democrats growing a real spine and embracing majoritarian progressive values that can actually win elections in the manner that FDR espoused. That is not going to happen until the Buckley plutocracy is overthrown and authentic democracy can be used routinely to obtain, from at least one party, the politicians and policies that the majority desires rather than those the plutocracy has bought. The straightest path to that goal, by overturning Buckley, is to filibuster Gorsuch in favor of, at the very least, a consistent "strict constructionist."

Chuck Schumer agrees that Gorsuch has an "ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent justice on the Court." This states the problem. Schumer led his Democrats to oppose cloture for this ideologue nominee, which put the ball in the Republican's court. If Republicans are willing to hurt their own long-term interests to put Gorsuch on the bench, that is a trade-off that the public will need to assess in 2018.

One poll showed a large majority (69%) already opposed to abolition of the filibuster rule. Meanwhile this is the first vacancy on the Court since its Citizens United decision first placed its plutocratic "money-is-speech" jurisprudence on the political map. That makes the Gorsuch nomination a timely target for a referendum on that much-reviled decision. Voters should eject every Senator who, by supporting Gorsuch's confirmation, breathed new life into that decision, and thereby the continued corruption of the republic.

* This article is based on the author's most recent book, "Strategy for Democracy: Why And How To Get Money Out of Politics," which is currently available as a free ebook. This is part of a multi-volume study assessing strategies for ending the political influence of special-interest money, which especially critiques the dominant Democratic liberal meme of endless advocacy for constitutional amendment and other piecemeal reforms. The study presents easier and more effective alternatives. See also "The Amendment Diversion," Bk. I.

(Article changed on April 5, 2017 at 20:58)

Authors Bio:
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 development and anti-corruption issues.