Trump nominated 10th Circuit Judge Neil Gorsuch, whose mother -- Reagan's EPA chief -- would have fit right in with Trump's cabinet of deplorables. The New York Times places Judge Gorsuch on its handy liberal-to-conservative chart to the right of Justice Alito and the late Justice Scalia, but to the left of Justice Thomas. Gorsuch worshipped Scalia, wept when he learned of Scalia's demise, and hews to a similar judicial philosophy, although he wields a less acerbic pen.
Anyone in the mold of Justice Scalia only more conservative can hardly be called mainstream. Indeed, his right wing bona fides are solid. He was in the majority in the lower court Hobby Lobby case which held that employers could refuse to provide contraceptive coverage to female workers on religious grounds. And he took the rare step of calling for reconsideration by the entire 10th Circuit of a decision that restored funding to Planned Parenthood after the Governor cut off funding -- and dissented when the full Court declined.
And while he wrote a book about assisted suicide and euthanasia which talked about the "intentional taking of human life" that also seems to presage his troubling views on abortion, he was not so troubled by the horribly "botched" execution of Clayton Lockett, which I wrote about here (See Devolving Standards of Decency) -- an execution where witnesses described an "agonizing scene" in which over the course of 43 minutes, Lockett writhed, convulsed and struggled to speak before his heart "essentially exploded." Gorsuch joined the majority opinion that ruled against Lockett's estate, which had sued the state of Oklahoma. The opinion characterized the horrific events as merely an "innocent misadventure" or "isolated mishap" that does not constitute cruel and unusual punishment.
Gorsuch recently wrote an opinion criticizing what is called Chevron deference, a principle that courts should defer to federal agencies when it comes to interpreting ambiguous federal regulations. As Nan Aron, President of Alliance for Justice, explained: "Not requiring courts to defer to agency expertise when an act of Congress is ambiguous will make it much harder for federal agencies to effectively address a wide variety of critical matters, including labor rights, consumer and financial protections, and environmental law."
But even if Judge Gorsuch were a mainstream pick -- someone, I suppose closer to Justice Kennedy than Justice Scalia, Democrats should still fiercely oppose him, slow down the process as much as possible and then employ the filibuster. The Republicans stole this seat and Democrats have to keep reminding the public that for almost a year, they stonewalled President Obama's nominee -- Merrick Garland -- who is as mainstream and unobjectionable as they come. Republicans refused to even meet Garland, much less hold confirmation hearings or vote on his nomination. They sure as hell should not be afforded any Senatorial courtesy now. (See Republicans Can Go Bork Themselves)
There is absolutely no logical reason why Democrats should acquiesce to Donald Trump on anything -- to do anything to legitimize his presidency (see Just Say No) -- much less something as critical as a Supreme Court vacancy. But some Democrats are saying that they shouldn't fight this one since replacing Scalia would not change the balance on the Court -- and that they should save the big confrontation for the next one. With all due respect, this is fucking nuts.
First, filling the seat with a conservative does change the balance of the court if you consider that it was a seat that should have been filled by Judge Garland. Second, no one knows whether this will be Trump's only pick -- either because he implodes or because no other justice leaves the bench before the end of his term. Third, the idea that if Democrats cave this time they will be in a better position next time is the kind of Democratic logic that makes me want to guzzle antifreeze. Have they learned nothing from the last eight years? (And, who knows? Maybe if the Democrats stop treating the Trump presidency as normal and become a true opposition party they will win back the Senate in two years.)
And, finally, the notion that we need to keep the filibuster in place for next time is beyond idiotic. What difference does it make if the Republicans are forced to do away with the filibuster this time to confirm Gorsuch or the next time to confirm a subsequent nominee? The key is that Democrats need to fight for the seat that is rightfully theirs even if ultimately the Republicans will prevail.
Oregon Senator Jeff Merkley sets the exact right tone:
The most fundamental thing that must be understood about tonight’s announcement is that this is a stolen seat. This is the first time in American history that one party has blockaded a nominee for almost a year in order to deliver a seat to a President of their own party. If this tactic is rewarded rather than resisted, it will set a dangerous new precedent in American governance.More of this, please.
This strategy of packing the court, if successful, could threaten fundamental rights in America, including workers’ right to organize, women’s reproductive rights, and the rights of ordinary citizens to have their voices heard in elections rather than being drowned out by the corrupting influence of dark money from the richest Americans.
If President Trump were serious about healing the divisions in America and undoing the damage wrought by Senate Republicans last year, he could have named Merrick Garland to fill this seat. Garland is a centrist jurist who is respected on both sides of the aisle. Instead, he doubled down on division by picking an ideological and extreme nominee to satisfy the far right.
This is a stolen seat being filled by an illegitimate and extreme nominee, and I will do everything in my power to stand up against this assault on the Court.