Senators love to talk about their history and customs. “The U.S. Senate relies heavily on tradition and precedent,” the Senate website says. “Many of its current rules, procedures, and traditions date from the First Congress in 1789.”
But Republicans have been doing violence to those traditions for years. The nomination of Neil Gorsuch to the Supreme Court is the fruit of their disrespect for tradition. The GOP leadership has indicated they will force a vote to confirm Gorsuch’s nomination this week. If Democrats filibuster his nomination, as now seems likely, they have said they will abolish the minority’s traditional filibuster rights to confirm him.
It's time for all Democrats to say no.
Yes, It’s a Stolen Seat
Much has been written about the Republicans’ deliberate obstruction of Merrick Garland, President Obama’s nominee for this seat. Perhaps the most compelling analysis of all was conducted for the American Constitution Society.
“Never once has the Senate deliberately transferred a president’s Supreme Court appointment powers to a successor absent contemporaneous questions about the status of the president,” wrote law professors Robin Bradley Kar and Jason Mazone, adding:
“… the Senate Republicans’ current plan marks a much greater departure from more than two centuries of historical tradition than has thus far been recognized.”
As if that weren't enough, a number of Republican Senators made it clear last year that they intended to block Hillary Clinton from filling this seat if she became president.
Call that what you will, but don’t call it tradition.
The Real Agenda
There’s an agenda behind this obstructionism. In a now-famous 1971 memo to business leaders, future Supreme Court Justice Lewis Powell laid out a plan for capturing the institutions of politics, academia, and the judiciary for corporate America and the political right.
The Federalist Society was founded in 1982 to promote the advancement of hard-right ideologues in the judiciary. Its top funders have traditionally included ultraconservative billionaires like John M. Olin, Lynde and Harry Bradley, Sarah Scaife, and Charles and David Koch, along with corporations like Chevron and Google.
The Federalist Society chose many of President George W. Bush’s judicial nominees. Advancement in the Society is not based on competence or integrity, but on a willingness to adhere to its narrowly conservative agenda.
Donald Trump promised wary Republicans that if elected, he would choose a Supreme Court nominee approved by the Federalist Society. He picked Neil Gorsuch from a list provided to him by Leonard Leo, the Federalist Society's executive vice president, who also led the successful campaigns to name John Roberts and Samuel Alito to the High Court.
A Nontraditional Nominee
Trump has nominated a judge whose primary qualification is not his objectivity or his integrity – two qualities traditionally prized in a judge – but his willingness to adhere to the self-serving ideological views of his backers.
“We need a Supreme Court justice who will protect workers’ rights, not just corporate profits,” Sen. Bernie Sanders said this week. “I fear Judge Gorsuch is not that person.”
Gorsuch’s Federalist Society pedigree attests to that. Gorsuch is, in fact, a highly ideological nominee. Some of his opinions place him to the right of even Antonin Scalia, the ideologue/justice he would replace.
He has consistently hewed to right-wing political orthodoxy and the interests of the wealthy. As Sen. Jeff Merkley recently wrote, “A look at Gorsuch’s decisions shows a disturbing pattern of a conservative activist twisting the law to find in favor of corporations and the powerful.”
Gorsuch concluded that an employer was within its rights in essentially demanding that an employee freeze to death, ruling that the employee lost his rights by acting to save his own life.
Gorsuch is a firm supporter of unlimited campaign cash and billionaire-funded politics. As activist and law professor Zephyr Teachout noted recently, “Judge Gorsuch said that campaign contributions are – (he) went out of his way to say that they are one of the most fundamentally protected parts of our freedom.”
Gorsuch appears to be actively hostile to the democratic principle of voting rights for all citizens. As an official in the George W. Bush Administration, he warmly supported the career advancement of a voter suppression specialist named Hans von Spakovsky, when both worked at the Justice Department.
Von Spakovsky, who has spearheaded efforts to enact voter ID laws and other measures to roll back voting rights, was later named by President George W. Bush to the Federal Election Commission.
Gorsuch has the soul of a lobbyist, not a jurist.
Then there are the unanswered questions about this nominee, which include:
How extensive are Gorsuch’s ties to billionaire Philip Anschutz, and will they pose a conflict of interest for him on the Supreme Court?
Have we learned the full extent of Gorsuch’s apparent plagiarism – an ethical violation that would have disqualified a nominee in more tradition-bound times?
When Gorsuch wrote about euthanasia that the “intentional taking of human life by private persons is always wrong,” was it a coded message that he had already reached an opinion on overturning Roe v. Wade, as some observers have speculated?
Can Gorsuch name a single case where he has ruled in favor of a worker or a disabled person?
Norms and Traditions
Some Democrats have expressed concern that an anti-Gorsuch filibuster would violate political norms and traditions, but the opposite is true. Norms and traditions required Republicans to vote on the nomination of Merrick Garland. They wouldn't even hold hearings.
Democrats shouldn’t use tradition as a reason not to filibuster Gorsuch. The Republicans’ behavior has been anything but traditional.
Some Red State Democrats are worried that they’ll be seen as obstructionist by some of their constituents. They should look to the future. It will soon become clear to all but the most hardcore right-wingers that Trump and the Republicans – including his Supreme Court nominee – have made life worse for most Americans in order to benefit themselves and their rich friends.
When that day comes, these Democrats will benefit from being able to say they’re on the right side of history.
Trump said he wanted to nominate a justice “who’s going to stick to his guns.” Unfortunately, Gorsuch’s record makes it clear that he will do exactly that, even though that's precisely what a good judge should not do. A judge should be open to well-crafted arguments, precedent, and common sense. That’s what tradition – and the Constitution – demand of them.
Tradition is not always correct, and the Senate needs reform. But tradition, in this case, demands that Democrats resist both the nominee and the process that led to his nomination. Gorsuch must be filibustered – if not in the name of tradition, then in the name of justice.