Why Democratic Senators Must Filibuster Neil Gorsuch Or Face Primary Challenges

Like John Roberts before him, Neil Gorusch is a dedicated champion of a right-wing, pro-corporate agenda.
03/20/2017 03:16 pm ET Updated Mar 21, 2017
Trump Supreme Court nominee fishing with his mentor Antonin Scalia
Trump Supreme Court nominee fishing with his mentor Antonin Scalia

You probably have a better chance of being appointed as a judge by the Chinese Communist government without being a member of the Communist Party than you have of being appointed as a judge by Republicans without being affiliated with the hard-right Federalist Society.

Trump Supreme Court nominee Neil Gorsuch fulfills this Republican litmus test in spades. He was picked from a list of 21 names supplied by the Federalist Society and plucked from that list largely through the efforts of longtime Federalist Society leader Leonard Leo who coordinated the fight to confirm Federalist Society members John Roberts and Samuel Alito to the Supreme Court.

That’s reason enough why every Democratic Senator must use every tool at he/r disposal to defeat Gorsuch’s nomination, including the filibuster. The growing Resistance movement to the Trumpublican agenda must make it clear to any wavering Democrat that he or she will face a certain primary challenge to their reelection if they fail to do so.

In the coming few weeks, the groups that have sprung up around Indivisible, MoveOn, Peoples Action, the ACLU, and other organizations to demonstrate at senators’ homes and offices must take their demonstrations to the homes and offices of wavering Democratic senators, and to the home and office of Chuck Schumer to insist he enforce party discipline, rather than blithely let Democratic Senators go their own way.

The Federalist Society may be the most powerful right-wing organization that most people have never heard of.

Funded by reactionary billionaires like the Koch Brothers and Richard Scaife, The Federalist Society has waged a brilliant 30-year war to take over the American judiciary and reshape it to their oligarchic liking by stacking the courts with judges (like Neil Gorscuh) aligned with their pro-corporate, anti-middle class agenda.

The Federalist Society believes “the easiest way to change the law is to change the judges.” They have been phenomenally successful in doing so.

Every Federal judge appointed by both President Bushes was either a member of or approved by the Federalist Society, as are Supreme Court Justices Roberts, Alito and Thomas (and the late Justice Scalia).

So, surprise, surprise, Trump Supreme Court nominee Neil Gorsuch was hatched in a Federalist Society laboratory.

Like John Roberts before him, Neil Gorusch may look like he was picked by central casting for a Jimmy Stewart lookalike contest, have a top academic and professional resume, and be a skilled legal writer and amiable conversationalist. But beneath the amiable veneer, like Roberts he’s a dedicated champion of the Koch-funded, pro-corporate legal agenda.

Twenty-two Democrats bought Roberts’ con and voted to confirm him. As Chief Justice, he’s led the most right-wing Supreme Court since the early 1930s. Fool Democratic senators once, shame on you. Fool them twice, shame on them.

As Michael Avery and Danielle McLaughlin write in their book, “The Federalist Society: How Conservatives Took The Law Back From Liberals,” the Federalist Society works

What are some of the Federalist Society’s greatest victories in moving the law in a pro-corporate direction?

· Citizens United which held that corporations are persons with the same First Amendment rights as actual people and that unlimited contributions by billionaires and corporations to Super PACS, often run by a candidates’ family members and former top campaign aides, are not corrupting. The case was shepherded through the courts by the Federalist Society, argued before the Supreme Court by Federalist Society luminary Ted Olson, and backed by the four Federalist Society Justices on the Court, Roberts, Alito, Thomas, and Scalia

· Shelby County v. Holder which overturned the provisions of the Voting Rights Act which had required that states with a history of racial discrimination receive pre-clearance from the Justice Department before changing their voting laws. Shelby, which has unleashed a flood of voter suppression laws throughout the country making it harder for minorities, young people, and old people to vote, was likewise backed by the same four Federalist Society Justices and fulfilled a decades-long goal of the Federalist Society to undermine voting rights going back to the Reagan administration

· Vieth v. Jublier, written by Federalist Society leader and Gorsuch mentor Antonin Scalia, which ruled that partisan gerrymandering in which elected officials can pick their own voters is Constitutional. The result is multiple cases in which one party (usually Democrats) receives a majority of the popular vote, but the other party (usually Republicans) ends of with a majority of Congress People or state legislators.

· A series of anti-trust cases in which the Roberts Court consistently ruled in favor of large corporations, including overruling a century-old precedent that minimum price restrictions are inherently violate anti-trust laws, making it easier for corporations to engage in anti-competitive actions.

· A series of cases in which the Court barred class action law suits in many instances, thus effectively closing the courthouse door to ordinary citizens claiming economic injustice by powerful corporations.

· Burwell v. Hobby Lobby in which the Court ruled that a for-profit corporation can deny contraceptives to women under their health insurance policies if contraception violates the religious beliefs of the corporation. Hobby Lobby pernicious on several grounds, both because it makes contraception unaffordable to many women, and because it holds that for-profit corporations can have religious beliefs, just like actual people. The latter point could be used even to undermine enforcement of civil rights if a corporation believes that serving a certain minority group violates its religious beliefs. Notably, before the case reached the Supreme Court, Judge Gorsuch authored a concurring opinion.

As Gorsuch’s opinion in the Hobby Lobby case makes clear The Federalist Society can count on Gorsuch to advance its pro-corporate, anti-civil rights agenda if he’s confirmed for the Court.

Moreover, Gorsuch’s nomination is consistent with Steve Bannon’s stated goal of dismantling “the administrative state”. In a concurring opinion, Gorsuch questioned the Supreme Court’s longstanding precedent in Chevron v. National Resources Defense Council that courts should generally defer to the decisions of Federal agencies like the Environmental Protection Agency.

If Gorsuch is confirmed for the Supreme Court, it may not be long until he joins, or even leads, a Federalist Society-supported decision which would make it much easier for the Supreme Court to overturn things like environmental regulations or regulations protecting workers’ rights.

At 49-years old, Gorsuch could spend the next thirty-forty years helping overturn laws protecting the environment, workers, minority groups, and women.

If Democrats lack the backbone to filibuster the 49-year old Federalist Society pick of Gorsuch, , the Koch Brothers and their fellow oligarchs will further succeed at reshaping the law to favor the wealthy elite and disadvantage the majority of working class and middle class Americans for the decades to come.

Republicans have a rule: They won’t appoint a Justice who’s not affiliated with the Federalist Society.

Democrats should have an equally firm rule—They won’t confirm a Justice who is affiliated with the Federalist Society and will use the filibuster to block him or her.

And the Resistance should have a rule, too—It must make clear that it will mount a primary challenge to any Democratic Senator who does not filibuster Gorsuch or others of his ilk.

The vote on Gorsuch is the most consequential vote that’s likely to come before the current Congress. Senators serve for six years. A young justice like Gorsuch could serve for thirty-forty years with an impact that will last for decades, long after this Congress is no longer in session. There can be no backsliding allowed for wavering Democratic Senators.

As legal scholar Ian Millhiser writes,

There will no doubt be much celebration at the U.S. Chamber of Commerce and at Koch Industries if Gorsuch is confirmed. Women, workers, voters, and the Earth itself will have less to celebrate.

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