If Democrats Cave on Gorsuch, They’ll Be Sorry
The day the late Supreme Court Justice Antonin Scalia died Appeals Court Judge and Scalia’s nominated replacement, Neil Gorsuch, said he could barely get down a ski run in Colorado because he was so blinded by tears at his death. This was not a private utterance or personal feeling of deep emotion that he shared with friends and family. He told of his profound sorrow in a speech in April 2016 at Case Western University. Gorsuch wanted the world to know that Scalia was more than just a heartfelt friend. He was a man and a judge whose legal and judicial ideas he was in total lockstep with.
Scalia represented judicially everything that liberal Democrats, civil rights, civil liberties, women rights, and public interest groups regard as wrong with the Supreme Court. His opinions and votes on crucial cases read like a what’s what of legal horror stories. Scalia tipped the White House to Bush in Bush versus Gore in 2000, voted to gut voting rights, oppose same sex marriage and gay rights protections, to scrap the checks on corporate spending on elections, whittle away at abortion rights, and give free rein to corporations to discriminate by narrowing down who could file class action lawsuits.
The only reason that Gorsuch hasn’t matched his mentor and idol Scalia’s 19th Century grounded voting record on key cases, is because he hasn’t been on the court for the decades Scalia was on the high court. But there’s enough in his thin resume on some cases that pertain to abortion rights, Planned Parenthood funding, a powerhouse federal judiciary, and most menacingly the strictest of strict reading of the constitutionalism, branded “originalism,” to serve as fair warning of what’s to come if he gets on the SCOTUS. And, as with Scalia, it won’t be pretty.
This is one of the few times that Senate Democrats can do exactly what Senate Republicans did with Obama’s pick to replace Scalia, Merrick Garland, use the filibuster to say no. The GOP concocted the blatant lie to justify their obstructionism that Obama was a lame duck president, and lame duck presidents don’t and shouldn’t have the right to put someone of the high court on their way out. They pooh-poohed the fact that the Senate has approved other lame duck president’s picks to the courts including Reagan’s pick of Anthony Kennedy in 1988, Reagan’s last year in office.
They blocked Garland not because of protocol, propriety, or tradition, but raw, naked and brutal partisan politics. The GOP understands that the Supreme Court is not just a neutral arbiter to settle legal disputes. It is a lethal weapon to skirt congressional gridlock and serve a dual role as a judicial and legislative body. This meant scrapping the long-standing tradition on the court where justices based their legal decisions solely on the merit of the law, constitutional principles and the public good, and not ideology. Trump and his hard-right conservative backers are fully aware that the court’s power to be de facto legislators could last for decades. After all presidents and congresspersons come and go, but justices can sit there until death if they choose. Scalia was proof of that. He sat for 30 plus years on the bench.
Gorsuch is young and fit, and conceivably could duplicate Scalia’s tenure on the high court. He would sit there long after Trump is gone, and long after other future Democratic presidents that sit in the Oval Office depart. During those years, he will be a key vote, if not the key vote, on many cases involving labor protections, civil rights, civil liberties, gay and abortion rights, corporate power, environmental issues, education, the death penalty, criminal justice system reforms, voting rights, and many other issues that will alter, and shape law and public policy for years, perhaps decades to come.
Gorsuch was carefully vetted by the Heritage Foundation when it submitted its list to Trump of reliable ultra-conservative judges who would rigidly toe the ultra-conservative line. They took no chance of recommending any judge who might in any way be a high court turncoat, and experience a judicial conversion in philosophy as a few judges thought reliably conservative have done in the past. The stakes are simply too high to risk that in the relentless drive by ultra-conservatives to roll back the gains in civil, women’s and labor rights of the past half century.
The pressure will be enormous on conservative Democratic senators in the Red states to cave quickly and support Gorsuch, by rejecting a filibuster. They’ll be hit with everything from the stock argument that presidents have the right to pick their SCOTUS justices to outright threats that they’ll be top targets when election time rolls around. It will take much for them to do what the GOP did with Garland, that’s to say no, and back a filibuster. If they cave, they’ll be terribly sorry.
50 Years Later, Civil Rights Leaders Face Bigger Economic Challenges
The 50th anniversary of the monumental 1963 March on Washington was accompanied by a wave of commemorative events that tried hard to recapture the energy and the spirit of the 1963 March. This was a tall order. The original march, punctuated by Dr. Martin Luther King, Jr.'s towering "I Have a Dream" speech, acted as a powerful wrecking ball that crumbled the walls of legal segregation and ushered in an era of unbridled opportunities for many blacks. The results are unmistakable today. Blacks are better educated, more prosperous, own more businesses, hold more positions in the professions, and have more elected officials than ever before.
Yet the towering racial improvements since the 1963 March on Washington mask the harsh reality: The challenges 50 years later are, in some ways, more daunting than what King and other civil rights leaders faced.
When King marched in 1963, black leaders had already firmly staked out the moral high ground for a powerful and irresistible civil rights movement. It was classic good versus evil. Many white Americans were sickened by the gory news scenes of baton-battering racist Southern sheriffs, fire hoses, police dogs, and Klan violence unleashed against peaceful black protesters. Racial segregation was considered immoral and indefensible, and the civil rights leaders were hailed as martyrs and heroes in the fight for justice.
As America unraveled in the 1960s in the anarchy of urban riots, campus takeovers, and anti-war street battles, the civil rights movement and its leaders fell apart, too. Many of them fell victim to their own success and failure. When they broke down the racially restricted doors of corporations, government agencies, and universities, it was middle-class blacks, not the poor, who rushed headlong through them. As King embraced the rhetoric of the militant anti-war movement, he became a political pariah shunned by the White House, as well as mainstream white and black leaders.
King's murder in 1968 was a turning point for race relations in America. The self-destruction from within and political sabotage from outside of black organizations left the black poor organizationally fragmented and politically rudderless. The black poor, lacking competitive technical skills and professional training, and shunned by many middle-class black leaders, became expendable jail and street and cemetery fodder. Some turned to gangs, guns and drugs to survive.
A Pew study specifically released to coincide with the 50th anniversary celebrations graphically made the point that the economic and social gaps between whites and African-Americans have widened over the last few decades despite massive spending by federal and state governments, state and federal civil rights laws, and two decades of affirmative action programs. The racial polarization has been endemic between blacks and whites on everything from the George Zimmerman trial to just about every other controversial case that involves black and white perceptions of the workings of the criminal justice system.
A half century later, the task of redeeming King’s dream means confronting the crises of family breakdown, the rash of shamefully failing public schools, racial profiling, urban police violence, the obscene racial disparities in the prison and criminal justice system, and HIV/AIDS. These are beguiling problems that sledgehammer the black poor and these are the problems that King and the civil rights movement of his day only had begun to recognize and address. Civil rights leaders today also have to confront something else that King did not have to face. King had the sympathy and goodwill of millions of whites, politicians, and business leaders in the peak years of the civil rights movement. Much of that goodwill has vanished in the belief that blacks have attained full equality.
Then there’s the reality that race matters in America can no longer be framed exclusively in black and white. Latinos and Asians have become major players in the fight for political and economic empowerment and figure big in the political strategies of Democratic and Republican presidential contenders. Today’s civil rights leaders will have to figure out ways to balance the competing and sometimes contradictory needs of these and other ethnic groups and patch them into a workable coalition for change.
It's grossly unfair to expect today’s civil rights leaders to be the charismatic, aggressive champions of, and martyrs for, civil rights that King was. Or to think that 50 years later, another March on Washington can solve the seemingly intractable problems of the black poor. The times and circumstances have changed too much for that. Still, civil rights leaders can draw strength from King's courage, vision and dedication and fight the hardest they can against racial and economic injustices that have hardly disappeared. This is still a significant step toward redeeming King’s dream.