Maine’s Angus King is a swing Independent Senator who caucuses with Democrats. As a former lawyer, like many of his colleagues, he cannot 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. Yet going into the week in which this decision will be made, King remains the hold-out Democrats.
The March Confirmation hearings for this far-right, “friendly fascist,” and “soulless,” nominee who is a 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 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.”
A weekend of anti-Gorsuch demonstrations in such cities as New York, Chicago, Seattle and Denver opened the first week in April when the historic vote on Gorsuch will be taken. The Republican-controlled Senate Judiciary Committee will approve the nomination on Monday and send it to the Senate floor for three days of debate. A filibuster will follow. 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 will need to get 60 votes for cloture. They have only 52 votes, which is enough for confirmation but not enough to first end the filibuster.
If the systemically collapsing Democrats would display even a fraction of the backbone that McConnell’s Republicans did with respect to Obama’s failed Merrick Garland nomination for this same seat on the Court, they could easily stop Gorsuch. Angus King is hinting that he will vote for cloture but then vote against confirmation where the Republican majority will prevail anyway. This would allow King to effectively vote for plutocracy in practice while pretending to vote against it in principle. This is pretty much routine theatrics for the fake opposition to plutocracy, sometimes referred to as Kabuki politics. This is what should be expected from spineless Democrats who are “not inclined to filibuster” unless progressives intervene with something more effective than letter writing to make them filibuster as evidence they are not Republican lite. If it were not for the pro-plutocracy Democrats and their corrupt superdelegates and DNC, progressives would be determining this nomination through their own President Sanders. This debt requires payment. King, along with eight Democrats, were being counted as holding out on making that payment as the showdown week began.
Democrats originally needed 41 Senators out of 48 to sustain a filibuster against the pedigreed and credentialed Judge Gorsuch, who is the son of a Reagan pro-pollution EPA director. Trump dredged Gorsuch up from the same plutocratic Swamp he promised to drain, as he has all his other appointees, so far. By mustering 41 votes against cloture, Democrats will defeat the Gorsuch nomination unless Republicans change the rules to resort to the “nuclear option” of repealing the anti-democratic filibuster rule or legitimizing a work around, as the price for his appointment.
Though Fox News claims “an attempt to change the rules could be inevitable,” it is not at all clear that the Republicans have 50 Senators willing to change the rules. Some Republicans want to preserve 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. They 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. Even McConnell said it will take 60 votes to confirm Gorsuch, while consistently predicting he would get those votes. That returns us to an inspection of the Democrats’ wobbly spine.
Trump complained that “Courts seem to be so political.” With Gorsuch he hypocritically nominated a thoroughly politicized judge to the Supreme Court whose extreme right wing politics have not changed since he was in prep school. Because lower courts where Gorsuch has been working tend to follow precedent, and 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, on the Circuit Court Gorsuch tended to achieve his ends by tinkering with procedure rather than by sweeping rulings of substantive law. But he was chosen because there is very little room for guesswork about what politics Gorsuch 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 Scalia, 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 more 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 appoint Gorsuch to his current 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.
While Sen. King, along with Democrats like Joe Manchin, Heidi Heitkamp and Joe Donnelly, was contemplating a vote for cloture other Democrats like Senators Tester, Warner, Coons and Leahy remained undecided. Such a pro-cloture vote would deny that having Gorsuch on the Court would be worse for the country than not having any new judge on the Court at all. This is the choice 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 and remains considerably more popular than Trump. But the public accepted this new political standard by returning a Republican-controlled Senate.
The only reason for the opposing party to accept the nominee of a president is deference to the will of the people as a whole that 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,” while 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. Going into the week of the Gorsuch vote, Ballup shows he has reached an historic low-point. Moreover Democrats generally are 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 if Trump did represent the legitimate will of the majority, rather than the fraudulent product of a corrupt and broken political system, the new standard honestly acknowledges that a highly politicized Supreme Court majority regularly makes highly political decisions on the basis of their own political biases rather than clear text of the Constitution.
Behind his facade of “shrewdly calculated innocence,” not to say “smarmy” entitled 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 might cause them to overturn the Senate’s filibuster rule against their long term interest is that he will be a reliable political tie-breaker. Gorsuch has never done anything significant for the country. He is simply a sure fifth vote for plutocracy. This is worth spending millions to achieve because the payoff will be 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, or even to know whether and how he satisfied the anti-abortion and other litmus tests that Trump promised to apply, before he takes his seat and begins improperly enacting his ideology into law alongside the four other right wing extremist justices. For this reason the hearings made little news, and 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 as a cardinal premise pretends that judges are not political but have some special powers of discernment that enables them to make profoundly political decisions contrary to the will of the majority.
Republicans correctly consider this ideology essential to maintain 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’s – Republican justices who upheld the Constitution.
These organizations lobbied for Gorsuch after spending millions and lobbying just as forcefully against Garland who had even better establishment “qualifications” than Gorsuch. (Unlike both Obama and Garland, Gorsuch was not a member of the prestigious Harvard Law Review). An “expert” for one of those organizations stated the new 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.” Republicans who worried about “donor backlash” did what they were bribed by plutocrats to do by blocking the merely conservative Garland in favor of their more reliably right-wing plutocratic Federalist Society nominee.
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 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 mired firmly in the very center of such politics.
Although Trump is unpopular by any historical standards, liberal Senators like King or Leahy have been nervously reluctant to block his nominee by applying the same new political standard to Gorsuch that Republicans applied to 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 is to make no decision at all.”
Predictably, the plutocratic wing of the Democratic party instead produced supporting propaganda for its failure to embrace a filibuster strategy as a party, i.e. effectively. Thus the Bezos Post published an article 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 rules. This approach ignores that the new standard represents an honest acknowledgment of the reality that the Supreme Court is not only already fully politicized but also fully weaponized by its judicial supremacy ideology for unrestrained class warfare on behalf of plutocrats. Ignoring the plutocratic politics of a Gorsuch at the time of confirmation will only make the plutocratic supremacist faction on the Court more brazen.
Nevertheless the usual party operatives argue, along with Republicans, that Democrats should apply the old standard of deference. Because they opposed the new standard, Democrats should therefore defer to Trump’s nominee under the old standard which recognized the presidential role of speaking for a majority. As mentioned 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 the 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 an excuse for giving their usual decisive support to the plutocracy that they serve behind their windowdressing of liberal principle or tradition. By way of such defective reasoning the betrayal which started with Manchin and Heitkamp, could conceivably spread to just enough more of their party necessary to put Gorsuch on the Court.
These defectors will be excused as 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 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 a politician pretends to be non-partisan and principled. It is Republican Senators, not the rule change, that will “usher in more extreme judges.” In this shell-game reasoning Heitkamp contends she is stopping future extreme judges by appointing an extreme judge this week.
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 plutocratic faction of the Democrats which uses such 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 Gorsuch’s nomination, they pull out of the air such idiotic “principles” as these to justify conceding power to Republicans. They claim 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. This flawed tactic suggests it will be useful to keep the Democrats’ powder dry for some mythical future when they will finally fight for progressive values. They would paradoxically preserve the undemocratic filibuster rule by not using it. 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 used has no value worth preserving. The Gorsuch appointment threatens to deliver the decisive vote on the pivotal question of legalized corruption. The plutocracy has clearly prioritized getting Gorsuch on the Court. There could be no more important use of the filibuster rule. 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 more likely to repeal the 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 or marshalling the votes to sacrifice it in the interest of having another extremist Federalist Society justice join the Roberts Court’s plutocratic majority. Third, by not 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. This makes it even less likely they will be able to stop future extreme right-wing Trump nominees, whether or not the filibuster rule stands.
There has never been, at any previous time in American history, a Supreme Court nominee that would be worse for the republic than Gorsuch would be right now. None in the past would have been more decisive in perpetuating oligarchic rule and thereby drowning democracy in the Swamp of systemic plutocratic corruption that now dominates both political parties.
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 pro-corruption decisions including Citizens United and McCutcheon, was interrupted only by Justice Scalia’s death last year. None of the Roberts 5 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, which was only gained by Scalia’s departure, 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 sanity compared to the rest of the federal government.
One of the more ill-informed arguments by plutocratic liberals is that an ideologically deadlocked 8 justice Court is unsustainable or otherwise institutionally dysfunctional. The truth is just the opposite. The 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 a respite from rule by an illegitimate juristocracy as the Court, due to circumstances, tended to remain within its proper constitutional powers.
This modest little flame celebrating the survival of the Constitution’s checks and balances 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 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. 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.
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% report it is very important that he not be confirmed. Any Senator who, like Manchin and Heitkamp, votes for cloture needs 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, will be more consequential than the Gorsuch cloture vote.
The party’s 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 the corrupt control over the party by the plutocrats who pay them. The Democratic Party extorted support from independent Sanders voters in the general election for a corrupt plutocratic candidate on the grounds that loss of the Supreme Court was too important a risk to take. The plutocrat faction could risk turning the presidency over to a clown by nominating their weakest 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.
Democrats will now define their utility as an opposition party on the basis of how they handle this Supreme Court appointment they campaigned on. If they cannot muster the 41 votes to defeat cloture then they are not worth retaining in the Senate at all. It would be better to clean the slate and remove them all in favor of a new, authentic, opposition party if they are incapable of rising to serve the public interest on this historic occasion. The way Democrats usually serve the plutocracy is to lose by a single vote, so the countdown to that one vote loss began with the first two defectors.
Even the inexperienced Trump knows 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 reflect 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 will spend $10 million of dark money on ads supporting Gorsuch. It has for the first time hired a prominent Wall St. lobbying firm to advance what they view as this “incredibly important nomination.” In his hearings Gorsuch refused to identify 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. 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, compared to what they would have received if everyone had shared equally in economic growth that year. Those policies for economic redistribution to the rich are bought by them from corrupt politicians within the plutocratic system maintained by the Supreme Court, the profits from which also pays for those ads to support Gorsuch in order to ensure that this class warfare plunder will continue.
Democrats who claim this is not the “Armageddon” nomination 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 early 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 have transferred the target to the backs of the two other vulnerable Democrats from red states, one of whom, Donnelly (D-IN) 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. 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 to the 90%?
Progressive and Independent voters who punished Democrats in 2016 for nominating a plutocrat like Clinton to lead the nominal opposition party, especially, need to 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 been electing Clinton for four years. Gorsuch is a worse threat to democracy than Trump. Just as Clinton was vulnerable, Democratic Senators from an unusually vulnerable 25 states are up for reelection in 2018. Democrats who can be influenced by money from the right wing to perpetuate the very corrupt system where such money has influence have defined themselves as useless to maintain in office. They are occupying space that should be made available for an authentic opposition to plutocracy.
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 need 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.
Senator King is one of those 25 up for reelection in 2018. Maine voted Democratic 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 needs to be turned into a clear litmus test of how a known number of such voters will treat King at next year’s polls if he votes for cloture.
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 political 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 with uniformly plutocratic nominees and corporate giveaways, these voters who now know they were lied to and that they are being consistently ripped off by Trump policies on issues from taxes and health care to 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 to make the difference. Flipping any Republicans would make the Democrats’ expected betrayal more difficult to execute.
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 than rescuing democracy from the current corrupt Swamp of plutocracy should be removed to make way for progress.
Restoration of democracy should be a non-partisan American principle. Voting for cloture is the most significant possible way right now for corrupt politicians of both parties to keep the Swamp rising. Such a vote by Democrats only furthers the Party’s self-destructive freefall toward oblivion. Democratic votes enabling cloture would be final proof 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.
Americans generally comprehend the Roberts Court’s serial violations of the constitutional separation of powers in its pro-corruption decisions. Their political decisions imposing a corrupt plutocracy on the country by overturning 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 1960’s to describe Republic 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 – which limited the Court’s exercise of judicial review powers for their own political purposes. Such justices maintained 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 illegitimate judicial supremacy on matters, like elections and political corruption, that fall outside the scope of the constitutional powers assigned to the judicial branch. It is the legislature that was given the power to regulate and judge elections for the purpose of assuring that elections do not deteriorate into instruments of corruption which 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 any objective application to the concept of “strict construction.” This phrase and its various cognates can only meaningfully refer to strict adherence to the traditional rules denying the judiciary constitutionally illegitimate political powers to extract new law from vague political principles found in the Constitution to guide political, not legal, affairs. 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, such as the limitation that McCain-Feingold placed on corporate independent expenditures which was overturned by the judicial supremacist Citizens United (2010) or that law’s regulation of the unlimited expenditures on sham corporate issue ads which were legalized 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 creating 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 of the 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 plutocratic corruption. The term was suited to the Republican status quo strategy of a previous era, but no longer describes their changed criteria for selecting activist right wing plutocratic justices.
If they practiced truth in labeling, Republicans would describe their new Federalist Society ideological criteria for selecting justices as “plutocratic judicial supremacy.” This includes in one phrase both of their governing ideologies for creating a government on the auction block to plutocrats under the aegis of infallible Supreme Court pro-corruption rulings.
Questioning of Gorsuch in the confirmation hearings should have probed this paradox of terminology to determine which term best fits Gorsuch’s own judicial philosophy. But with few exceptions the Democrats generally conducted lackluster questioning of Gorsuch.
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 which 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. But it 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.
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 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 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 inequality and social hierarchy has caused a new civil rights crisis that diverts democratic energies into various symbolic, identity-politics, pressure release valves by which 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.
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 to politicians in exchange for 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 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 Roberts Court 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, the Swamp’s official gatekeeper and pro-corruption hydrologist assuring the continued flow of money to the 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. The narrowest interpretation of the Citizens United ruling only legalized corporate independent expenditures of a negligible amount. It was Sentelle who converted Justice Kennedy’s broad dicta into a ruling that stripped the government of power to place any limits on independent expenditures.
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, Arizona Free Enterprise Club (2011) (gutting public funding), and McCutcheon (2014) (immunity of political parties for their institutional conflicts of interest caused by undeniably influential aggregate contributions).
In Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014), Gorsuch, in a concurring opinion, 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 with nothing but a talisman of empty words. Gorsuch invoked these words in a case which evaluated a doctrinal euphemism for judicial supremacist power, the “various tiers of scrutiny” to be applied by supremacists to protect the fundamental equal “right” to make political investments in violation of state anti-corruption law.
Monetizing the First Amendment by decreeing such a “significant relationship” for corrupting political investments in this manner rationalizes the judicial veto of anti-corruption law designed by legislators to defend democracy from the systemic conflict of interest corruption by which plutocrats corrode and topple popular sovereignty.
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.” This is the very opposite of the judicial supremacist he clearly is, and must be to serve the plutocracy as he is expected to do.
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 assured the public, “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. Legalizing plutocracy and creating identity hierarchies by discriminatory rulings are inseparable strategies for a politicized right wing operative like Gorsuch.
The paradoxical reasoning of pretending a judicial supremacist is actually the 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, though he may have been slightly more insistent he is not political than was the stiff and evasive Alito.
The Democrats’ Minority Leader, Sen. Charles Schumer, long ago figured out the stealth nomination fraud these 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 whether he keeps that promise. Any failure by Schumer to effectively enforce party loyalty cannot be excused by ignorance. So far his record is three Democrats down, five to go.
One problem is that the Democrats failed to mount an effective challenge to Gorsuch in the hearings which would have made it more difficult for right wing Democrats to bolt. 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 know that the Senate Democrats who control the margin of difference are consenting to another judicial supremacist to rule over them, and perpetuate plutocracy, although Democrats would otherwise have the votes to stop him.
Several such questions that should have been presented to Gorsuch would be:
+ 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?
+ 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 an example of strict construction of the Constitution?
+ 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?”
+ 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 which is supposed to otherwise be available for buying speech. Some of 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 ruled to create conflicts of interest.
+ 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 crime should be overturned 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 is 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 bounce of voters 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 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, were all 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 any proper penance?
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 ignore their party leaders’ complicity in electing Trump . He would have them discharge their anger against Trump with some relatively minor inconvenience to Trump. King offers this suggestion, paradoxically, to support Trump’s own nominee, notwithstanding 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’s strained logic demonstrates Chris Hedges’ dictum: “The party elites know that if corporate money disappears, so do they.” Is there any good reason for progressives not to vote against King and similar liberal “elites” if they join in placing Gorsuch on the Court by voting for cloture for such lame reasons as King, the Democratic traitors and their supporting propagandists in the mass media offer?
Helping the extreme right Roberts 5 run the executive branch 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 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 by supremacist judges like Gorsuch and his supremacist would-be colleagues with impunity.
As Jefferson rightly put it, the prospect of impeachment for such supremacist misconduct is “not even a scarecrow.” Therefore 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 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.
A “Biden rule” referendum for 2018
A successful filibuster of Gorsuch, coupled with a 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. If, under pressure from progressives, Democrats persist in blocking such an appointment through to the 2018 election, by means of a cliff-hanging application of what Sen. McConnell still calls the “Biden rule,” they might eventually force Trump to appoint a moderate justice. Or they might not, since the election map suggests a narrow but possible Republican path to a filibuster-proof 60 Senator majority, which would win their largest margin since the 1920’s.
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. If five more of them discover a backbone to fight the Gorsuch nomination, and the Party then expels its traitors, Democrats might win back some voters and prevent such a large Republican supermajority.
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” in order to hold a referendum on Gorsuch in November 2018 would be justified because Trump blatantly lied to his voters about draining the Swamp. Elections have consequences when they guide official actions. But Trump has so far done nothing but raise the Swamp, helping corporations plunder his voters in many ways, but most importantly by nominating Gorsuch.
The swing voters who elected Trump need to themselves decide whether Gorsuch is a Swamp dredging instead of a Swamp draining nominee they were entitled to expect for the branch that built the Swamp in the first place, and now guards it from any intrusion of either integrity or democracy. Garland lost the comparable referendum that Sen. McConnell scheduled for him in 2016. His loss was justifiable since he, like Gorsuch, was also a 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 of liberal values. This new bar allows 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, and his supporters lost largely because they were viewed as the servants of plutocracy that he 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. If not, 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.”
Compromise short of such a 2018 referendum is possible. There of course 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 in order to maintain the Republican plutocrat-cultural conservative political alliance. 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.
For example, a book on constitutional interpretation by Harvard professor Adrian Vermeule, Judging under uncertainty: an institutional theory of legal interpretation (2006), suggests he might have such integrity to consistently reject all forms of judicial supremacy. 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. He 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. Since Senators like King are softening up their liberal supporters to accept the lose-lose of the Republican hypocrisy that Gorsuch represents, it would be worthwhile to make them instead force Trump to provide at least the kind of win-lose compromise on the kind of consistency that a Vermeule nomination would offer. Author Scott Turow has written in favor of just such a compromise in response to the Gorsuch nomination, pointing out the hypocrisy of “originalists” such as Gorsuch in cases like Heller and Citizens United.
Liberals would not like Vermeule. 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 for one of the supremacist Roberts 5, Scalia himself. 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 and a realist like Turow.
By nominating Vermeule, or a consistent “strict constructionist” like him, Trump could satisfy his right wing base on the identity politics 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 historically deep under water.
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 which was already in place, while he pretended to newly enact the weakened rule. 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.”
Trump repeatedly said, “It is time to drain the swamp in Washington, D.C.” and “end our government corruption.” Trump thus deceptively invoked this truth about the priority issue for his own swing voters to make people believe that his actions will be guided by it. He made this theme a centerpiece of his Inaugural speech in order to stanch the rapid flight of former supporters from his plutocrat-dominated transition. Trump’s promise to drain the Swamp simply cannot happen 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 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 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 in 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.”
The minority leader 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. The question is whether Schumer will use his powers to enforce party discipline for the solution, a firm 41 votes against cloture for this ideologue nominee and any others like him.
* 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 that 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.