The American electorate might be forgiven for hoping beyond hope that intense partisanship might be tempered when the Senate considers the confirmation of our next Supreme Court justice. Knowing where the nominee stands in relationship to judicial activism and the leanings he or she may have with regard to previous rulings is critical to be sure. If the Supreme Court is to fulfill its duty to the American people as defined in the Constitution, there ought to be little room for blatant conservatism or liberalism or any intense demonstration by the nominee of political or policy favoritism.
Inasmuch as it can be possible in such a divided political climate, the Supreme Court is our republic’s sole branch of government where the Constitution and adherence to the laws of this land hold the highest authority. It could serve as a stabilizing force in a very unstable time. Tragically, we are witnessing an almost complete lack of deference for a process that would allow some level of deliberation and appropriate consideration throughout the confirmation process. The person will, after all, sit on the court for life.
It does not appear that the nomination and confirmation process for Neil Gorsuch will be handled in anything but an intensely partisan and damaging way.
Listening to Sen. Bernie Sanders on CNN this morning, we know the Democrats will likely have enough votes to block the nomination under normal Senate rules with regard to Supreme Court nominations. What we also know is that the rumblings from the Republican leadership are offering a thinly veiled promise to use what’s known as the “nuclear option” to assure Gorsuch’s confirmation at the end of next week.
What we cannot yet know is whether or not Democrats (and Sanders, who is an independent but who caucuses with the Democrats) will risk the longer term political consequences of changed Senate rules once the nuclear option has been deployed. It also remains to be seen if Democrats and the full Senate will be allowed to have the full-throated debate and deliberations that a Supreme Court nomination deserves — and that the American people deserve.
{mosads}If the Democrats choose to filibuster the Gorsuch nomination, Republicans will almost certainly push their nuclear option in order to secure this Supreme Court seat. No matter how the process goes over the next few days, it remains sadly obvious that the intense partisanship and divisiveness Congress showed during Barrack Obama’s last term has been exacerbated by Republicans’ unwillingness to consider Merrick Garland’s nomination, and their newly found bravado around their control of Congress and the White House.
Taken together with the tweeter in chief’s proclivity for bullying anyone who dares to debate or question his motivations, the tainting of the nomination process with deeply partisan jockeying for position in the Senate sends a terrible message to the American public.
An enormous ad campaign has been running in support of this nomination, alongside all the pro-fracking and Exxon corporate advertising, and though a certain percentage of the American public may not find that odd, many more Americans know that Neil Gorsuch is the mouthpiece for an intensely alt-right agenda, and not the even remotely nonpartisan jurist some would prefer.
The religious right was thrilled that Gorsuch was the author of the Hobby Lobby decision that eventually made its way to the Supreme Court. While some might want to frame that as a case about religious freedom, that case emboldened anti-abortion forces that have threatened women’s reproductive rights and beyond.
And many on the left believe he has shown judicial favor to Wall Street interests and the agenda that the Trump-Bannon White House is advancing. Gorsuch’s nomination is backed by the Judicial Crisis Network; though Gorsuch denies knowing who the “front group’s” main contributors are, JCN’s top funder is the Wellspring Committee, co-founded by the Koch Brothers and others. It is difficult to believe that Neil Gorsuch, an intelligent and thoughtful man by most accounts, is not aware of those funding sources.
No matter how he might wish to claim arm’s length from the Trump White House and that messy business of politics in the swamp, he is as much a part of the political agenda as any of the senators who also have benefitted from advertising and support from the National Republican Senatorial Committee.
Without a sound process carried out in the Senate and with the campaign advertising being done on his behalf, Gorsuch’s nomination and potential confirmation further weakens the Senate, the Supreme Court and the nation. The nuclear option diminishes the process, the nominee and more.
If the Republicans use the nuclear option to change the Senate rules and confirm Gorsuch, the damage to this nation that became so evident following the November election will intensify. And the way it looks now, there may be no way to stop this damage.
Our Senate historically has been often viewed as the body where deep deliberation, spirited debate and a longer-term vision offered at least a partial shield to more immediate political forces. Some of the most powerful and healing moments in this nation’s history have come from the upper chamber’s deliberations and process. That tradition has already been deeply eroded and made so much worse by the arrogant and sometimes politically ignorant dealings of the Trump-Bannon White House.
It remains to be seen whether or not the Senate will have enough institutional memory and integrity to protect itself as a vital part of the sound functioning of our democracy, or if it will further descend into the tweeting abyss of insanity. It is almost an aside as to who the nominee is and what he is about — this is much deeper. This is about our ability to self-govern. The Senate should be reminded of Ben Franklin’s wise words: It is up to us all to either keep or destroy this republic.
Donna Smith is the executive director of Progressive Democrats of America.
The views of contributors are their own and are not the views of The Hill.