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)
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