Trump’s tendency to blanket the airwaves with a daily dose of simmering scandals and outrageous provocations—not to mention the occasional faux-conciliatory speech served to obscure one of his most consequential decisions: the nomination of far right judge Neil Gorsuch to the Supreme Court. As the public has largely focused its attention elsewhere, Gorsuch himself has embarked on a charm offensive, courting Senate Democrats and striving to present himself as within the mainstream despite the fact his judicial record marks him as a far right zealot. For example, Gorsuch seemingly adheres to what should be the disqualifying premise, rejected by 7 in 10 Americans, that corporations are people. In line with this view, Gorsuch considers political donations by such “persons” to be a “fundamental right” and believes any effort to reduce the influence of money in politics should be subject to “strict scrutiny,” the highest possible legal standard. In other words, he is at the very least comfortable with the level of corporate influence in American politics.
Despite the fact that Gorsuch’s views fly in the face of everything progressives stand for, there are signs his charm offensive is paying off among moderate Democrats. Sure, he doesn’t believe women should have mandatory access to contraception through their health plans, as evidenced by his opinion on the Hobby Lobby case. But hey, the guy loves dogs. And rafting. Plus, he’s not a big fan of Japanese internment. Or, retroactively, his own article for the National Review that repeatedly insults the left. Gorsuch even mustered some gentle but ultimately inconsequential criticism of the man who nominated him, President Donald Trump. For the ten Democrats Gorsuch seeks to win over, such things seem to carry more weight than they should considering the implications of his nomination. Like Donald Trump, Gorsuch does not need to clear a very high bar to be deemed “mainstream.”
If Democrats do not start building a strong, public case against Gorsuch’s nomination now, he may be confirmed with some degree of bipartisan support. While it would be nice for a party nominally committed to liberalism to rally against an originalist on the Supreme Court, we cannot count on it. Moderate Democrats from Trump-friendly states, many of whom are up for reelection in 2018, currently have every incentive to appeal to their constituents by supporting Gorsuch. If we want Democrats to hold the line against a Supreme Court nominee who would place reproductive rights, campaign finance reform, voting rights and a whole slew of other progressive priorities in jeopardy, now is the time for action.
Activists have taken to the streets in women’s marches, deluged their congressmen with phone calls urging them not to support cabinet nominees and attended Republican town halls to defend the Affordable Care Act. Why not devote the same energy to safeguarding the Supreme Court? Senate Democrats who may be inclined to vote for Gorsuch’s confirmation must be made to feel that they will pay a tremendous political price for doing so. They must fear a progressive backlash—including the prospect of primary challenges—more than they fear the wrath of Trump voters.
To be sure, depriving Gorsuch of the 60 votes he needed to be confirmed according to current Senate rules would constitute a largely symbolic victory. Donald Trump and Senate Republicans have indicated that if Democrats unite to block Gorsuch, they will employ the nuclear option, lowering the threshold for confirmation of a Supreme Court nominee to 50 votes. If this came to pass, Democrats would be powerless to prevent the GOP from seating Gorsuch. Nevertheless, Democrats would emerge from theft of a Supreme Court seat with something important: credibility.
The GOP violated the spirit—if not the letter—of the Constitution by refusing to so much as hold a hearing for Merrick Garland, President Obama’s nominee to fill the Supreme Court seat vacated by the death of Justice Antonin Scalia. If Democrats respond to this outrageous breach of norms with a glorified shrug because Neil Gorsuch seems like a decent guy, they will in effect legitimize the GOP’s cynical, unconstitutional tactics. The GOP broke the Supreme Court nomination process and if Democrats treat Gorsuch’s nomination as business as usual, they will send the message that the GOP’s actions were legitimate or, at the very least, forgivable. Consequently, the country will be rewarded with another Supreme Court justice who prioritizes the interests of the 1% over all else.