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The Hot (as in Stolen) Seat

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So Neil Gorsuch is Trump’s nominee for the stolen seat on the Supreme Court.

Like many people, I call it a stolen seat because, remember, Senate Majority Leader Mitch McConnell refused to even consider former President Obama’s nominee, Merrick Garland. That unprecedented, blatant power grab lasted for almost a year. McConnell also brazenly declared that should Hillary Clinton win, no SCOTUS nominee of hers would be confirmed either! An eight-seat Court was perfectly OK with the Republicans, who named the seat “Scalia’s seat” as if that late arch-conservative had owned it. This was a breathtaking violation of Senate rules: a SCOTUS seat stolen in broad daylight by a Republican-controlled Senate refusing to do its Constitutionally mandated job regarding Court nominees. McConnell wouldn’t convene even a single hearing for Garland, who had previously been highly praised by Republicans.

Well, they were willing to live with an eight-person Court then, so they damned well should live with an eight-person Court now.

But that’s only possible if the Democrats stand up on their hind feet and act like Senators.

Sure, Republicans control the Senate and can confirm Gorsuch if enough Democrats give in and slink across the aisle. But if Democrats refuse to be complicit with legitimizing last year’s theft? If Democrats say NO? If Democrats filibuster? That takes 60 votes to override, and Republicans have only 52. This leaves them with the unenviable choice of letting the ninth seat remain unfilled, or else imploding the filibuster rule so they can ram Gorsuch through with a simple majority, the so-called “nuclear option” Trump naturally is urging McConnell to employ.

My, how uncomfortable for Republicans! In 2013, they kicked and screamed when, after months-long Republican obstructionism to Obama’s nominees, Democrats finally eliminated filibusters on executive branch nominations and federal judicial appointments other than those to the Supreme Court. In fact, those judgeships, finally freed from GOP blockage, are one reason for the current, heartening reaction by lower-court judges in narrowing and then temporarily freezing Trump’s Muslim and refugee travel ban. In other words, that 2013 act by Democrats should stand as a bracing lesson.

Sadly, some Senate Democrats haven’t gotten the message. Four willingly joined (every single one of the) Republicans in approving Exxon Mobil CEO Tellerson as the oleaginous secretary of state. We won’t forget their spinelessness—and should let them know that: West Virginia Sen. Joe Manchin, North Dakota Sen. Heidi Heitkamp, Virginia Sen. Mark Warner, and Maine Sen. Angus King, an Independent who caucuses with Democrats.

Other Democrats have signaled openness to having a committee vote on Trump’s Supreme Court nominee: Senate Minority Whip Dick Durbin (Ill.), Richard Blumenthal (Conn.), Chris Coons (Del.), Heidi Heitkamp (N.D.) again, Joe Manchin (W.Va.) again, Claire McCaskill (Mo.) and Jon Tester (Mont.). These Dems need to hear from us that we are angered by their collaborationist positions. We also need to stay on guard about red-state Democrats, about deferential Democrats like Sens. Bill Nelson of Florida and Tom Carper of Delaware, and about perennial swing votes: Sens. Chris Coons of Delaware and Independent Angus King of Maine. And—calling all Californians!—I regret to say that we need to intensify pressure on Dianne Feinstein, who tends to revert to old-style Senate gentility while the other side is establishing new take-no-prisoner rules.

But other Democrats are blinking awake, beginning to realize that the public, including their base, is energized and livid. Demonstrators have been “lobbying by picket” at Senate Minority Leader Chuck Schumer’s home in Brooklyn, hoping to stiffen his far too supple spine. It makes a difference, people—all your phone calls, emails, letters, visits to congressional offices back home, marches, demonstrations. The Senate is receiving more phone calls and emails than at any time in its history on any issue.

By the way, if you’re feeling generous, a support note wouldn’t hurt to Republican Sen. Susan Collins of Maine, who publicly opposed the Muslim ban and also has pledged to vote against Betsy DeVos for education secretary, along with Republican Sen. Lisa Murkowski of Alaska. Both women said their anti-DeVos votes were determined by the volume of calls they were receiving.

Some Democrats did show mettle—walking out of committee hearings scheduled to vote on three Cabinet nominees, including Jeff Sessions for Attorney General—depriving the committees of the required quorum. They did this after much hand-wringing deliberation. But it took only a few moments for the GOP committee chairs to respond with a move unprecedented in Senate history: they just changed the committee rules so that neither a quorum nor the presence of a member of the minority party were required! Listen, that’s the kind of thing that confirms there’s no afterlife; if there were, the Framers would be rising and walking. And pissed.

As for Neil Gorsuch, here’s the thing. He would be unacceptable as a Supreme Court nominee even were this not a stolen seat.

Gorsuch is the son of Anne Gorsuch, the Ronald Reagan-appointed first woman to head the Environmental Protection Agency—where she slashed the EPA’s budget by 22 percent, rolled back clean air and clean water rules and other protections, and gutted the Agency until she herself was forced to resign in shame after a scandal involving mismanagement of the Superfund program. Anne Gorsuch has the distinction of being the first cabinet-level officer ever cited for contempt by the House of Representatives.

As for her son, gimme a break. There must be no Democratic whining that Gorsuch might be minimally “qualified” or debating that his position on abortion isn’t “really clear, after all,” not when all the Friends of the Fetus groups are dancing on rooftops at his nomination, citing, for instance, his rulings in the Hobby Lobby and Little Sisters of the Poor cases as strong evidence of anti-abortion commitment.

When the 10th Circuit ruled in Hobby Lobby, Gorsuch wrote a concurring opinion on why corporations and their owners must be permitted to impose their religious beliefs on employees, including companies’ right to deny workers access to contraception through their own insurance plans if employers believe contraception to be evil. Gorsuch attributed to the Hobby Lobby corporation the capacity for “religious faith,” which coverage for contraceptives would “violate” since birth-control drugs and devices have the effect of “destroying a fertilized human egg”—an utterly false claim, by the way, even in cases of emergency contraceptive use.

Gorsuch also joined a dissenting opinion in Little Sisters of the Poor (try opposing a group with that name—sounds like the nuns are Hummel figurines). In that case, he ruled that the government could not require religious nonprofits even to fill out paperwork exempting them from the ACA contraceptive mandate, since the mere act of signing documents to opt out of the mandate made nonprofits “complicit” in something they found “sinful.” (Gorsuch was raised Catholic, and would be the sixth Catholic on the current Court.) In a 1996 amicus brief for a case about physician-assisted suicide, Gorsuch gratuitously wrote that requiring public hospitals to provide abortions was an example of the courts “overriding the conscience of health care providers.” In sum, Gorsuch believes medical personnel, corporations, companies, and individuals should be free to discriminate against women based on any personal whim they articulate, preventing us from legal access to necessary health care. He’s impressively consistent, too. Recently, he expressed interest in a decision blocking Utah’s try at defunding Planned Parenthood: he wanted to re-hear the case.

Neil Gorsuch’s career specialty has been aggressively defending right-wing-redefined “religious freedom” as the freedom to discriminate against women, lesbians and gay men, and people with belief systems other than Christian.

So consider this. Less than a week ago, a leaked copy (adore these leakers!) of a draft Executive Order titled “Establishing A Government Wide Initiative To Respect Religious Freedom” was obtained by The Nation magazine, and the four-page draft reveals momentous plans by the Trumpians. It defines religious organizations so broadly as to cover “any organization including closely held for-profit corporations,” and protects, indeed greatly expands, its new definition of “religious freedom” in every walk of life: “When providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, public square, or interfacing with federal state or local governments.”

This draft would attempt, by Executive Order, to establish a theocracy in the United States. It is horrifying.

When the leak surfaced, White House Press Secretary Sean Spicer, caught off guard, mumbled it was “only a draft” and he had “nothing to say on that front—yet.”

Imagine that ” yet” has happened. Imagine this draft Executive Order being signed by Trump, and then challenged by us in the courts, where it would make its way up to the Supreme Court, there to encounter the so-called “qualified, not-so-bad, could-be-worse, aww-give-him-a-chance” Neil Gorsuch, whose judicial obsession has for years been trying to expand “religious freedom”—even at the cost of The Constitution’s Establishment Clause, Equal Protection Clause, and First Amendment. What a longtime wet dream of the evangelical right, the Roman Catholic Church, and homophobic and anti-choice religious fundamentalists!

Gorsuch has also been a jurist ruling lovingly for conservative activists and large corporations who want to gut protections for consumers, clean air and water, and safe food and medicine. He has a disastrous record on workers’ rights, immigrant rights, criminal justice reform, and public-sector labor unions. Moreover, at only 49, he would be the youngest Supreme Court justice since Clarence Thomas was confirmed in 1998, which means he would be on the court for a looooong time. Even if the seat had not been stolen, Gorsuch would be a nightmare.

So go for the filibuster, Democrats! Rules protecting senate minorities exist for a reason! Call McConnell’s bluff and let him “go nuclear.” Ooooh, does he ever not want to do that because then he owns it, and he knows the day will come when Republicans will desperately need to filibuster.

Bottom line: they can put Gorsuch on the court, but we cannot help them claim that their putsch is bipartisan.

Those who counsel us to save the filibuster for down the road seem blind to the cliff edge looming just ahead. All along, Trump’s strategy is to aim for the extreme position but then backpedal if forced to, and if not stopped he will get away with whatever he can. He admits this in so many words in his fake books; he calls it “negotiation.” And all along, too many well-meaning moderates, frankly unable to believe the extremism of his positions, counseled “wait and see”—which is what didn’t stop him earlier.

In an excellent op-ed piece in The New York Times, David Leonhardt laid out just how drastic the denial of Obama’s right to fill that stolen seat has been, how deeply damaging to the Court and to the entire American legal system. As we’re seeing now with the district judges’ emergency rulings on the Muslim ban, we have only one governmental avenue left: that legal system. This Republic is a nation of laws. Leonhardt urged Democrats not to weigh this nomination like previous ones, because this one is different: the process leading to Gorsuch’s nomination was itself illegitimate.

The seat Garland should have held for more than a year should not be filled now. Nor is that “stooping to the Republicans’ level.” On the contrary, if we treat this nomination as if it’s independent from the illegal process that produced it, we are complicit in that illegality, we reward Republicans for having trampled on The Constitution in stealing the seat they now claim as theirs by right.

Senate Democrats will have to face the principled fury of their constituents at the polls if they pretend this is a normal nomination process. It’s not. Let the seat stand vacant. Oppose Gorsuch, whatever it takes.

And then oppose the next one. And the next. And the next.

The people are behind you, Democratic Senators–but only if you act like leaders.

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