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.
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