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Democrats Should Treat the Gorsuch Nomination With the Same Grace and Courtesy That GOP Treated Garland’s Nomination

During most of its history, big business and the wealthy have controlled a majority on the U.S. Supreme Court. Between 1870 and 1936, an activist “conservative” majority on the Supreme Court threw out numerous laws passed by the elected branches that benefited working Americans. That majority invalidated the minimum wage several times, threw out laws banning child labor and shredded civil rights laws that protected the newly freed African Americans. During Franklin Roosevelt’s first term, five GOP appointed justices threw out most of his New Deal legislation. Beginning in the late 1930s, the Supreme Court had a Progressive majority for the first time in history. That Progressive majority lasted until the early 1970s. Then, during the Nixon Administration, the conservatives regained their long standing majority.

A major turning point in the modern history of the Supreme Court was the replacement of Sandra O’Connor with Samuel Alito in 2005. That change moved the Court sharply to the right. Once Alito was a member, a five member activist “conservative” majority has consistently sided with big business over individuals and consumers. The Roberts Court greatly expanded the ability of the wealthy to influence election campaigns with its infamous decision in Citizens United and its progeny. At the same time, the “conservatives” gutted the Voting Rights Act and gave the green light to voter suppression laws that are deliberately aimed at reducing voting among minorities and the young.

The nomination of Merrick Garland in 2016 gave Progressives their first opportunity in over 40 years to have a majority on the nation’s highest court. However, the Republicans, in unprecedented fashion, refused to allow hearings and an up or down vote on Garland’s nomination. This blockade broke the Republicans’ long time promise to allow an up or down vote on all judicial nominees — regardless of the party affiliation of the president. As Mitch McConnell said in 2005: “The Republican conference intends to restore the principle that, regardless of party, any President’s judicial nominees, after full debate, deserve a simple up-or-down vote.”

The Kentucky Senator justified his hypocritical, hyper-partisan blockade when he said: “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. “ Republican Senators doubled down on this hypocrisy during the 2016 campaign when several of them said they would never confirm a Supreme Court Justice nominated by Hillary Clinton should she win the election. As John McCain (R-AZ) said last year: “I would much rather have eight Supreme Court justices than a justice who is liberal.” Senator Richard Burr (R-NC) promised to keep the Scalia seat open for four years: “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

As we know, McConnell said in 2016 that the American people should decide on the next Supreme Court nominee. The American people had already decided in 2012 when they re-elected President Obama. The American people also decided last year when Trump finished second in the popular vote. Trump’s share of the popular vote was 46% — equal to that of McCain in 1988. Moreover, 62 million people voted for Trump and 74 million voted for somebody else. The American people decided — they don’t want Trump to pick the next Supreme Court nominee.

Despite Trump’s lack of a mandate and record low approval ratings for a new president, the GOP is going to attempt to govern against the will of the majority by ramming through the Senate, the nomination of Neil Gorsuch, an Appeals Court judge from Colorado. Gorsuch has a very disturbing record on the bench. Analysts who have reviewed his record indicate that Gorsuch is to the right of Scalia, Roberts and Alito. Only Thomas would be more right wing than Gorsuch. Moreover, during his time on the federal bench, Gorsuch has evidenced a hostility to gay rights, womens’ rights, affirmative action programs and voting rights. The Colorado judge would also be sympathetic to big business and would vote to further erode Americans’ right to seek justice under the 7th Amendment to the Constitution.

Trump and the Republicans in the Senate are already demanding that Gorsuch receive the up or down vote that they denied to Judge Garland last year. The ever shameless Mitch McConnell released the following statement: “I hope members of the Senate will again show him fair consideration and respect the result of the recent election with an up-or-down vote on his nomination, just like the Senate treated the four first-term nominees of Presidents Clinton and Obama.” McConnell’s statement was especially disingenuous since he conveniently left out Merrick Garland. The Kentucky Senator is playing us for chumps and thinks that we are all stupid.

The cold hard reality is that the Gorsuch pick is illegitimate because the seat was stolen when the GOP broke their long time promise to grant an up or down vote to all judicial nominees — regardless of party. Furthermore, Trump’s pick doesn’t reflect the decision of the voters that McConnell mentioned last year. Nor does it reflect the will of the voters in 2012 when they re-elected President Obama by a comfortable margin. Contrary to what the Republicans said, there is no tradition of not confirming a Supreme Court nominee in an election year. For example, Anthony Kennedy was confirmed by a 97–0 margin by a Democratic majority Senate in 1988.

Deb Fischer and Ben Sasse joined McConnell last year in this unprecedented and outrageous blockade of Merrick Garland’s nomination. Now — like McConnell — they are insisting upon an up or down vote for Gorsuch. There is no moral or legal basis for this hypocritical, partisan and immoral double standard for Supreme Court nominees. I would recommend to all of my readers that they call Fischer and Sasse and point out this unacceptable and differential treatment of these Supreme Court nominees. Our calls are already making a difference. The Republicans are getting cold feet about the repeal of the Affordable Care Act and the Betsy Devos nomination is hanging by a thread.

The American people decided in 2012 and 2016 that they don’t want Trump to pick the next SCOTUS nominee. The Senate Democrats have a mandate — as well as a moral duty — to filibuster Trump’s SCOTUS pick. As Dan Pfeiffer, former senior adviser to President Obama said: “The Democrats should treat Trump’s SCOTUS pick with the exact same courtesy the GOP showed Merrick Garland.” By blocking the nomination of Merrick Garland last year, the Senate GOP established a new norm or paradigm regarding Supreme Court nomination. The old rules no longer apply. Now they can live with this brave new world they created last year.

I’m a trial lawyer, a Democratic activist and a sports fan.

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