I had intended to remain silent other than my PA judicial elections diaries (here and here), and I imagine other people have been covering this, but I recently had a discussion with a friend of mine about how strongly Democrats should try to obstruct Trump, particularly on SCOTUS. Some relevant history came up during our discussion, and I thought it worth sharing here. It definitely helps us see how Democrats (and America) have far more to gain by fighting and obstructing Trump rather than engaging in bipartisan accommodation and being the “adults in the room” the way they bend over backwards to be.
What happened when the Democrats accommodated Bush? It helped Bush's standing, not Democrats’, and people voted in more Republicans. Because elections these days are often referenda on the president. That’s just how it is.
Democrats allowed Bush to appoint the most authoritarian member of the Supreme Court, Samuel Alito. And what happened? He's repeatedly twisted the law to serve political ends. Ledbetter v Goodyear. Hobby Lobby. He wrote in Obergefell v Hodges that the real victims were not LGBT citizens, but the good Christian folk being forced to accept them as equal. The Democrats gained nothing by accepting him.
Democrats also gained nothing by accepting a sexual predator from another era, Clarence Thomas. Thomas was never Scalia’s lackey. He’s worse than Scalia.
So, that’s twice where Democrats caved and allowed the two worst justices since the Depression on the Court. And Alito and Thomas will be leading the charge to write Trump’s platform into the Constitution.
But what happened when Democrats rejected Robert Bork? Reagan nominated someone more acceptable. Anthony Kennedy. And memories of Bork led GHW Bush to nominate a consensus choice instead of a strong conservative. David Souter, who in turn was succeeded by Sonia Sotomayor.
And in 1968, Chief Justice Earl Warren announced his retirement. LBJ blundered and tried to elevate sitting Justice Abe Fortas, his longtime political ally, to chief. Republicans filibustered, and kept the seat open for Nixon to fill, with conservative Warren Burger. Meanwhile, they also railroaded Fortas off the bench over his alleged corruption. (What they didn't do was deny that LBJ was a legitimate president and say he had no right to nominate someone.) Democrats responded by rejecting two strong conservatives Nixon nominated to replace Fortas. Nixon then nominated the more moderate Harry Blackmun, who is best known for writing Roe v Wade and who was succeeded by Stephen Breyer.
So, that's three seats (Sotomayor, Breyer, Kennedy) that would probably be held by strong Trump-supporting conservatives if Democrats had not stood up. And did Democrats pay a political price when they stood up? No!
This is the whole ballgame. Are Democrats going to buckle and allow an illegitimate president to appoint an illegitimate justice who will have generations, and will have the votes, to turn the Constitution into a fascist document?
We’ve talked of primary challenges to senators who vote for Trump’s people. I have mixed thoughts on whom we should challenge, but I say yes, we should do it. If we want to keep Democrats from selling out and accommodating Trump, the way they are naturally inclined to do, we need to convince them that they would be risking their political lives by capitulating. People like Heidi Heitkamp and Joe Manchin—I get it, they probably can’t be Elizabeth Warren or Bernie Sanders. But you know what? Neither could Byron Dorgan. Neither could Jay Rockefeller. Yet they represented real people and usually voted for progressive policies instead of selling out to the GOP. Sherrod Brown represents a Trump state—but do you see him capitulating and moving to the right? No. Even in red or red-leaning states, we can and must do better than Heitkamp and Manchin. Because if Dems ever reclaim power, people like Heitkamp and Manchin will be the ones obstructing any and all progressive policies and insisting on keeping Trump’s—just like we saw eight years ago when our Blue Dog-dependent majority fiddled and normalized everything Bush did.
I know that is easier for an incumbent senator to win reelection than it would be to hold an open seat, especially in a state like North Dakota and West Virginia, which is why I could overlook some of what Heitkamp and Manchin do (though Manchin makes it difficult with the way he so frequently trashes the party and displays so much eagerness to work with Trump, even trying to get a Cabinet job). Because however lousy or unqualified Trump’s Cabinet choices may be, they are gone if a new president ever assumes office. Not Neil Gorsuch. He will have life tenure to write Trump’s platform into the Constitution---long after Trump dies (remember, Gorsuch, at 49, is 21 years younger than Trump, 70). I’m approaching 30 myself. Gorsuch could be there until I’m 70 if Democrats don’t fight. And that assumes I make it to 70 when climate change ruins the planet because Gorsuch has banned all methods of fighting it.
So if a senator voted for Rex Tillerson, they voted for an unqualified political crony. If they voted for Scott Pruitt, they voted for someone who will undoubtedly undermine the agency he heads. But both of them could be fired, and actions reversed, by a new president. But if a senator votes for Neil Gorsuch, he or she is voting to turn the Constitution into a fascist document—forever. And in my book, whatever state you come from, that’s unforgivable.
Congress is in recess now—so CALL YOUR SENATORS. GO TO THEIR TOWN HALLS. DEMAND THEY FILIBUSTER. I’ve left multiple messages for mine. Switchboard is 202-224-3121 (I can’t find the toll free number—anyone have it?) Three Democrats who voted for Alito are still in the Senate, and all are up for reelection in 2018—Bill Nelson, Tom Carper, Maria Cantwell. Make sure they get the message to filibuster Gorsuch. Other Democrats who might be tempted to betray us, and betray their oath of office, would of course be Heitkamp and Manchin, along with Jon Tester, Joe Donnelly, Claire McCaskill, Angus King, Mark Warner. All but Warner are up for reelection in 2018. But no matter who your senator is, go make your voice on this issue. This is the whole ballgame for democracy.
This is a coup. We need to treat it as such and demand that the senators do likewise. There is a reason why Chuck Schumer talked Harry Reid into not invoking the nuclear option for SCOTUS appointments. Join Jeff Merkley’s filibuster!
