Now that the 100 day mark of the Trump administration passed, there is little doubt that its most important achievement has been the confirmation of Justice Neil Gorsuch to the Supreme Court. When Mitch McConnell, soon after the divisive confirmation of Gorsuch, reminisced wistfully about “the most consequential decision I’ve ever been involved in,” little did he know how soon this prediction came true for a series of death row inmates in Arkansas. A few hours after Gorsuch cast the deciding vote to make their executions go forward, the first among them, Mr. Ledell Lee, was put to death; three more executions followed in quick succession. Within a matter of weeks, the nightmare vision of the Democrats had been realized: Gorsuch siding with the conservative majority in a decisive vote on a divisive issue to cement a particular idea of justice in America. The events in Arkansas displayed once again that the fight against the confirmation of Gorsuch was never actually about him. The fight was about justice the idea, not an individual. It just happened to be set within a battle over a Supreme Court seat.
Still angered by the refusal of Republicans to hold hearings for President Obama’s nominee Merrick Garland as well as the election of a new president who did not win the popular vote, Democrats demanded that their senators push back on Gorsuch’s nomination.
If the incessant calls to democratic senators and the threats to primary them are any indication, the base desperately wanted to see a filibuster and a rekindled combative spirit in the party. The Democratic establishment obliged, knowing full well their efforts would unlikely impact the actual outcome. So why do it?
Because for many Democrats, their longstanding trust in justice, that the right ideas ultimately do prevail, has been profoundly shaken. Americans could have penalized the Republicans for the obstruction of the Garland nomination, but instead they rewarded the GOP last November. The adage, the progressives are right and the conservatives have power, seemed to be reconfirmed. This reality has been hard for many to swallow. For Democrats and progressives, none of this should have happened. After all, history and justice are on their side, or more precisely: history is ultimately on the side of justice. But if the recent events teach a lesson, it is that many have forgotten to make the just powerful because they have relied too much on the power of what is just. Whether they trusted in long-term demographic trends, a deep-seated conviction that progress is unstoppable or that the truth will eventually come out, moderates and the left have neglected to embrace conflict, strife, and confrontation as weapons in just struggles, in struggles of justice.
This struggle was thus never about whether Gorsuch is qualified, but about the illegitimate result of an illegitimate process. The theft of an already stolen seat had to be recorded in the filibuster and stamp Neil Gorsuch with a permanent stain next to his name, as Trump’s nuclear Justice. Such injustices are felt more deeply today than ever before. While the constitutional right of a president who decisively won two elections to nominate a Supreme Court Justice was thwarted, a potentially illegitimate president who lost the popular vote seated his nominee. When nepotism and self-dealing run rampant, sexism and racism go unbridled, it became almost unavoidable that the confirmation proceedings of a new justice had to culminate in a fight that no longer weighs benefits and harms.
The call to resist the confirmation of Justice Gorsuch was ultimately an appeal to combine different struggles for justice. Behind calls for racial justice, gender equality, environmental or economic justice pulsates a demand for justice pure and simple. However, it is not enough to resist the authoritarian and plutocratic onslaught; it might require also a break with the trust in historical progress. Now might be the time to shed our faith in poetic justice and begin to act and think without that last assurance, bereft of the hope for a judgment day. The sense of urgency involves growing more skeptical about the still deeply-held belief in a silent agreement between justice and power.
Activists and protesters must wean themselves off Obama’s consoling hope, as he reiterated in his farewell address last January: “the long sweep of America has been defined by forward motion, a constant widening of our founding creed to embrace all, and not just some.” Obama’s edifying notion of the ultimate triumph of American progress and justice is grounded in a wrongheaded concept of history that time and again results in the victory of authoritarian rulers. Only where the faith in poetic justice is broken and where progress is utterly uncertain can struggles of justice be given their true weight and transformative power. Real faith involves not relying on the long sweep of progress and the rectifying accounts of future historians.
We should embrace this anxiety because the outlook for the future is radically open, abysmally free of predetermined visions. Then the question can arise whether the destruction of the filibuster has been the day that justice as we know it, as a deliberate form of decision-making, has died so that a different idea of justice, one that emerges from open-ended struggle, conflict, or even war, can emerge.