Independent Angus King of Maine is a swing Senator who caucuses with Democrats. As a former lawyer he cannot plead ignorance about the historic importance of his vote on the fateful filibuster to deny Trump’s far-right, “friendly fascist,” nominee, Neil Gorsuch, confirmation as Trump’s first Supreme Court appointee. Confirmation hearings are scheduled to begin March 20. A filibuster will follow. The key vote will come when Gorsuch supporters vote for cloture of the filibuster, which will require 60 votes to proceed to a vote on confirmation. Republicans only have 52 votes.
If Democrats display even a fraction of the backbone that McConnell’s Republicans did with respect to Obama’s failed Merrick Garland nomination for this seat, they can easily stop Gorsuch. King is hinting that he will vote for cloture but then vote against confirmation where the Republican’s majority in the Senate will rules. This would allow him to effectively vote for plutocracy in practice while pretending to vote against it in principle. Since this is pretty much routine for the fake opposition, this is what should be expected unless the public intervenes.
Democrats only need 41 Senators out of 48 to sustain a filibuster by voting down cloture for the personable, pedigreed and talented Judge Gorsuch who Trump dredged up from the corrupt Swamp he promised to drain, as he has all his appointees. By mustering 41 votes against cloture, Democrats will defeat the nomination or at least, at minimum either force the revocation, or legitimate a work around, of the anti-democratic filibuster rule as the price for his appointment. It is not clear that the Republicans have 50 to do the latter. Some Republicans want to preserve the filibuster rule, and even McConnell has said it will take 60 votes to confirm Gorsuch.
The vote for cloture that King is contemplating 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 Garland, and thereby established a new standard for Senate confirmation of Supreme Court nominees.
Republicans applied this new standard against a president more popular than Trump without suffering any backlash in the 2016 election. The people accept it. The new standard honestly acknowledges that a highly politicized Supreme Court regularly makes political decisions. The standard does not require any Supreme Court appointment to be considered that is not deemed to be politically good for the country, even if it would be good for the president. The decision is not a reflection on the personality or credentials of the nominee, but rather the politics of the nominee.
Even though Trump is not popular by any historical standards, liberal Senators like King are already nervously reluctant to apply this same new standard to Gorsuch that Republicans applied to Garland. They do not want to acknowledge that their vote on a Supreme Court nominee is a political vote, because it strips them of an excuse for making a vote for plutocracy, under the pretense that it is only a vote about character and credentials.
There has never been, at any previous time in American history, a nomination that would be worse for the country than Gorsuch would be right now. None in the past would have been more decisive in perpetuating plutocracy and drowning democracy.
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 in cases like Shelby County ‘s evisceration of the Voting Rights Act and their line of pro-corruption decisions was only interrupted by Justice Scalia’s death last year.
The current 4-4 deadlock of the Court, gained from Scalia’s departure, has provided the only bright spot in the failed politics of 2016. The ideologically neutralized Supreme Court has created space for the ideologically balanced lower federal courts to furnish some scattered respite for relative sanity compared to the rest of the federal government. This modest little flame celebrating 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-winger politician straight out of the plutocratic Swamp. This will only compound Obama’s strategic failure to fill the seat with a progressive recess appointment when he had the chance.
Gorsuch is even worse than Scalia and probably even worse than Roberts too, because smarter, a better writer, and personally more polished and likable in service of his right wing politics. It would be difficult to find a worse nominee to join this Court to break its current ideological impasse.
Any Senator who votes for cloture needs to understand in advance that they are going to face a campaign to remove them 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 another Supreme Court nominee, will be more consequential than the Gorsuch cloture vote. Democrats will define their utility as an opposition party on the basis of this Supreme Court appointment. If they cannot muster the 41 votes to defeat cloture then they are not worth having in the Senate at all.
Even Trump knows that, aside from national security, “the most important decision a president of the U.S. makes is the appointment of a Supreme Court justice.” This is exponentially more true than usual about this particular appointment. Beyond McConnell’s creation of new standard for this reason, other Republicans also reflect the same knowledge about the unusual importance of this seat and of a Gorsuch appointment to fill it. It 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 is also relatively young at 49.
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 high school. Because lower courts tend to follow precedent, and judicial supremacists on the Supreme Court do not, Gorsuch has not yet even begun to really put his predictably right wing ideology into action from the bench. He has tended to achieve his ends by tinkering with procedure on the Circuit Court. 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.
Progressive and Independent voters who punished Democrats in 2016 for nominating a plutocrat like Clinton to lead them, especially, need to let it be known that a cloture vote for Gorsuch will be a similar deal-breaker with the Senate Democrats in 2018. The impact of a Gorsuch appointment on further entrenching plutocratic corruption will be even greater than would have been electing Clinton for four years. Just as Clinton was vulnerable, there are Democratic Senators from an unusually vulnerable 25 states up for reelection in 2018. 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.
Those Independents who fled from Clinton, thinking Trump was a better bet to drain the Swamp, should do the same from the Republicans, now that Trump has revealed his true Swamp colors with uniformly plutocratic nominees and corporate giveaways.
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 could conclude the Party’s self destructive freefall towards political oblivion. Such a vote would be final proof that two plutocratic parties have become as redundant as two pro-slavery parties were in 1856, and one must go to make any progress.
The right vote to rescue democracy from the Swamp is “no” on cloture for the Gorsuch filibuster. Any Senator who has a different priority than rescuing democracy from the current corrupt plutocracy they serve should be ejected.
Senator King is one of those 25 up for reelection in 2018. On March 5, he faced a 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 apocalypse. Americans generally know about the Roberts Court’s serial violations of the constitutional separation of powers in its pro-corruption decisions. Their decisions imposing a corrupt plutocracy on the country by overturning a variety of state and federal anti-corruption laws remain. They 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 the Republicans still like to call a “strict constructionist” to take Scalia’s seat.
The Republicans’ contrarian, if not incoherently subjective, definition of “strict construction” is the opposite of its historic meaning when Nixon started using the term in the 1960’s. Nixon presumably invoked justices like Oliver Wendell Holmes, or Felix Frankfurter, who followed venerable constitutional limitations – such as “the doubtful case“ and “political question” doctrines – on the Court’s exercise of judicial review powers, so as to maintain proper democratic deference to the elected, political branches of government.
Whether or not Nixon and virtually every Republican after him who used this concept to describe their judicial nominees were familiar with these separation of powers rules, these rules define the intricate boundaries between the narrowly prescribed circumstances for legitimate judicial review of legislation and illegitimate judicial supremacy on matters, like elections and political corruption, that fall outside the scope of the constitutional powers assigned to the judicial branch. These rules provide the only legitimate source for giving any objective legal meaning to the concept of “strict construction.” This phrase and its various cognates can only meaningfully refer to strict judicial adherence to the rules denying constitutionally illegitimate political powers to the judiciary to make law. Republican appointees like Scalia, Roberts and their supremacist predecessors and colleagues have been exercising such political powers since 1976, something that the founder considered the straightest path to tyranny.
Gorsuch will vote to continue plutocratic corruption. A true “strict constructionist” like, for example, the former Justice Stevens would not overturn anti-corruption legislation, such as the limits that McCain-Feingold placed on corporate independent expenditures involved in Citizens United, or its regulation of the unlimited expenditures on sham corporate issue ads which were legalized in the even worse, though lesser known, FEC v. Wisconsin Right to Life, Inc. (2007).
For 40 years Republicans have failed to find an accurate replacement for Nixon’s “strict constructionist” concept from a previous era to describe their now changed criteria for selecting justices and judges. If they were honest they would describe their new criteria as “plutocratic judicial supremacy.” Questioning of Gorsuch should probe this paradox to determine which term best fits his own judicial philosophy.
Judge Gorsuch is known for taking a distinctly judicial supremacist view of executive authority in his criticism of what is known as the “Chevron” doctrine, a separation of powers rule which requires judicial deference to executive agencies’ expert interpretations of their governing statute. That Gorsuch would give somewhat less 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.
Judicial supremacy, the opposite of strict construction, is of the greatest importance to the Supreme Court’s conversion – by no more than its own political diktat – of money spent for the benefit of influence peddlers into constitutionally immunized speech. This widely unpopular legislation from the bench has completely transformed politics in the U.S. From a middling democracy with a great deal of individual political corruption but enjoying historic growth of economic equality, prior to 1976, the Court’s Buckley decision and its progeny have since then turned the country into a systemically corrupt plutocracy with its many dysfunctional symptoms, such as the growing inequality and social hierarchy which has caused a new civil rights crisis, among others.
This bizarre judicial supremacist alchemy of turning money into speech has, ever since Buckley v Valeo (1976) invented it, caused, in addition to political inequality and extreme economic disparity, numerous impending vectors of collapse. Catastrophic threats loom over all areas of public life and commons that have been reduced to dysfunctional profit centers of the ruling plutocracy, by financializing the economy for Wall Street profit, globalizing trade for Wal-Mart profit, despoiling the environment for industrial profit, commercializing health care for insurance and big pharma profit, carbonizing the climate for petrochemical profit, and war-profiteering for the MIC, to name just a few of the major profit centers that kick back their share to the influence peddlers who make it all possible for a price, without regard for future consequences.
The catastrophic legalization of political corruption since Buckley now hinges on this single appointment of Justice Scalia‘s replacement. As another 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 this decisive fifth, tie-breaking, Supreme Court seat 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 from plutocracy that do not go through the Supreme Court, the Swamp’s official gatekeeper and hydrologist.
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) decision that released unlimited SuperPAC spending. Because SpeechNow.org legalized unlimited corporate independent expenditures from any source, this was actually the last nail in the coffin of democracy for which Citizens United incorrectly gets blamed. 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 and therefore side against the four dissenting judges who have generally opposed those decisions in cases like Wisconsin Right to Life (2007), Citizens United, Arizona Free Enterprise Club (2011), and McCutcheon (2014).
In Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014), Gorsuch, concurring, flagged his support for the “money is speech” alchemy in the following several 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 in a case which involved the supremacist euphemism of “various tiers of scrutiny” to be applied to protect the fundamental equal right to make political investments. Monetizing the First Amendment by “relationship” in this manner rationalizes the judicial veto of anti-corruption legislation designed to defend democracy from the systemic conflict of interest corruption by which plutocrats corrode and topple popular sovereignty.
At the same time Gorsuch adheres to such judicial supremacist views to usurp power from the elected branches over 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” – the very opposite of the judicial supremacist he clearly is.
Like Roberts and his umpire meme, Judge Gorsuch wrote his own “strict constructionist” fake vows for his nomination ceremony, saying that “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.” This ritualized demurral by nominated judicial supremacists does not describe what Gorsuch has done when endorsing the supremacist concept that money is speech, or granting corporations religious rights in Hobby Lobby, or other cases restricting women’s rights. Identity hierarchies and plutocracy are inseparable strategies for a politicized right wing operative like Gorsuch.
This paradoxical reasoning of pretending a judicial supremacist is a “strict constructionist” has been going on a long time. George Bush II sang from this same dissonant songbook for his second, of two, disastrous judicial supremacist appointees: “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 will be hearing from and about Gorsuch, who is cut from the same supremacist cloth as Alito, though he may be more effective in pretending he is not than was the stiff and evasive Alito.
If the Democrats on the Judiciary Committee like Sheldon Whitehouse (D-RI) or Al Franken (D-MN) do not explore deeply with Gorsuch what he thinks a strict constructionist is and how the concept relates to judicial supremacist decisions like Buckley andCitizens United, they will fail to do their job.
Several such questions would be:
- Judge Gorsuch, you have been called a strict constructionist (some Republican will inevitably misuse the term). What does strict construction mean to you? Is the ruling in Buckley that Supreme Court Justice Byron “Whizzer” White described as the “maxim that ‘money talks,’ .… that money is speech and that limiting the flow of money to the speaker violates the First Amendment” an example of strict construction of the Constitution?
- Gorsuch clerked for 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 White, as expressed in White’s persuasive dissent from Buckley, would Gorsuch feel free to vote to overrule that case as wrongly decided in a case that sought to rely on it as precedent?
- Does Gorsuch agree with White’s criticism of the rationale in Buckley that regulation of campaign finance is unconstitutional because it reduces the “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 available to be spent for speech, some of it in the form of illegal proceeds from any kind of crime, not just from the crime committed when campaigns receive money in violation of campaign finance laws.
- Did anyone other than Robin Hood and Buckley plutocrats ever make such an argument that a crime can be excused by the use of its proceeds for some approved conduct?
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 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 to divert attention away from addressing, as the Sanders’ campaign tried to do, the priority progressive issue of bi-partisan corruption of democracy.
Fear of Trump cannot justify supporting Democrats whose entrenchment in the same political corruption actually caused Trump’s victory. The failure to acknowledge Clinton’s perceived weakness, a corrupted DNC process, and dishonesty about Sanders’ known superior strength against Trump with Independent and Progressive voters who viewed Clinton as mired in political corruption, are responsible for the unpopular Trump’s election.
By making the suggestion that his judicial supremacist inclination to tell the executive branch what to do might justify a cloture vote for Gorsuch, King was overlooking, or deliberately distracting attention from, the one essential issue. King would invite Democrats to ignore their party’s complicity and focus their anger solely at Trump as a reason, ironically, to support Trump’s own nominee, notwithstanding Gorsuch’s predictably fatal contribution to the exponentially more important issue of perpetuating this corrupt plutocracy in which Democrats are also mired. King 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 elites if they place Gorsuch on the Court by voting for cloture?
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 run the executive branch just as the elected legislators should make 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 them. Allowing the Supreme Court to usurp such political powers is a deceptive technique for politicians to avoid responsibility for serving plutocrats.
Under the separation of powers, unelected judges, as recited in the fake Gorsuch vow, should stick to judging and not concoct constitutional excuses and alchemical formulas to veto laws or regulations for the benefit of plutocrats. This is why there have developed elaborate separation of powers rules to prevent such judicial usurpation of political power, although they have been routinely ignored by supremacist judges like Gorsuch with impunity. As Jefferson rightly put it, the prospect of impeachment for such misconduct is “not even a scarecrow.” Supremacists need to be identified and ferreted out prior to their appointment by “extreme vetting” and intelligent questioning in confirmation hearings.
A successful filibuster of Gorsuch would force Trump to resort to his depleting stash of political capital before trying to appoint another right wing nominee. Since none could be worse than Gorsuch, this should count as victory. If, under pressure from progressives, Democrats persist through to the 2018 election under a cliff-hanging application of what Sen. McConnell called 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.
An extension of Sen. McConnell’s “Biden rule” for an additional six months beyond the original time of a year to hold a referendum on Gorsuch in November 2018 would be justified because Trump lied to his voters about draining the Swamp. He has done nothing but fill the swamp. The swing voters who elected him need to decide whether Gorsuch is a Swamp filler instead of the Swamp drainer they expected. 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 views on plutocracy by actually signing on to Sentelle’s opinion in SpeechNow.org. Obama tried to put Garland across in his slyly deceptive manner which is only stylistically different than Trump’s approach of outright lying by nominating his Swamp-filler, Gorsuch.
There should be a the Gorsuch referendum, whether or not Gorsuch is confirmed. If Democrats can stop, or delay any appointment until the 2018 election, they will have progressive support in that election to vote against Gorsuch or reward a Senate vote against cloture. If not, the Senators who fail to vote against cloture, will not have progressive support. Progressives need to remind Democrats that, either way, they have never succeeded in such elections by capitulating to the right wing and alienating progressive voters.
Compromise short of such a referendum is possible. There do exist ultra-conservative judges who, like Gorsuch, would vote against, on “strict construction” grounds, the liberal precedents they both dislike, but who, unlike Gorsuch, would also have the intellectual honesty not to pretend that overturning anti-corruption laws is also strict construction of a Constitution which nowhere provides any 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 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 “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 Gorsuch, it would be worthwhile to make them instead force Trump to provide at least the kind of win-lose compromise that a Vermeule nomination would offer.
Liberals would not like Vermeule. Seventh Circuit Judge 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.
By nominating Vermeule, a consistent “strict constructionist,” or someone like him, Trump would still satisfy his right wing base, while at the same time keep faith with the “drain the Swamp” swing voters who actually elected him, but who are now driving his favorability ratings under water. The only act that Trump even claims to have taken to keep his promise to “drain” actually filled the Swamp, by reducing the ethics rule already in place. Moreover Trump changed the rule so that he “can exempt an official from the lobbying limits at any time, for any reason, with no public disclosure.” “It is time to drain the swamp in Washington, D.C.” and “end our government corruption,” as Trump repeatedly said. That cannot happen if the Supreme Court’s rulings that caused the systemic corruption in the first place, by legalizing conflicts of interest are perpetuated by confirming Gorsuch.
A win-lose nominee would be a compromise that Trump might consider in his own interest. A win-win for both liberals and progressives in this nomination would require the unlikely feat of Democrats growing a real spine and embracing progressive values. That is not going to happen until Buckley plutocracy is overthrown and authentic democracy can be used routinely to obtain the politicians and policies that the majority desires rather than those the plutocracy has bought. The straightest path to the goal of overturning Buckley is to block Gorsuch in favor of a consistent “strict constructionist.”
* 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, while presenting easier and more effective alternatives. See “The Amendment Diversion,” Bk. I.