The Right-Wing Stole the Court — Liberals Shouldn’t Shut Up About It

The Call to Battle:

A major crime has been committed in the United States, in plain sight, and the criminals are getting away with it.

The Republicans stole a Supreme Court seat and, with it, the Supreme Court majority, probably for a generation.

In other words, the Republicans have stolen one of our three branches of government.

Throughout this sorry episode — the stonewalling of President Obama’s Merrick Garland nomination, the seating of Neil Gorsuch in his stead — the Democrats (and Liberal America generally) have been weak.

Should we now say, “What’s done is done”? Should we just “move on”?

No, because acquiescence ratifies the illegitimate, and compounds the damage to our constitutional order inflicted by the theft itself.

And it is still possible to strike back with a movement to tell that nation: “Gorsuch on the Court is an America Disgrace.”

Every time there is a 5-4 decision, with Gorsuch voting with a right-wing majority, the movement should bring crowds into the streets to protest. “Disgrace!” “Stop Thief!”

Dramatize that thieves profiting from their ill-gotten gains is unacceptable. Remind the American people that it is a travesty to have our Constitution interpreted by a Supreme Court majority that is itself the fruit of a violation of our constitutional order.

This crime must be understood as part of the destruction of our Democracy by the American Plutocracy.

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Elaboration:

1) The Republicans stole the seat.

Does this point need to be proved? If so, here is the gist of it:

• What the Republicans did, when Sen. McConnell declared within hours of the death of Scalia that the Republican-controlled Senate would not consider anyone the President (Obama) proposed, was unprecedented in American history. (Cf, the study of 103 such situations, in none of which did the Senate act in this way.)
• There is no way that this Republican obstruction was consistent with what the framers of the Constitution had in mind when they gave the Senate the role of “advise and consent” on judicial nominations. The purpose of “advise and consent” was for the Senate to act as a check to assure that presidential appointees were suitable, i.e. that they met the basic qualifications of professional quality, judgment falling within the broad mainstream, and good character appropriate for such high responsibility.
• Merrick Garland met those criteria with flying colors and, moreover, was entirely within the mainstream of American jurisprudence. In nominating Garland, President Obama pitched one right down the middle of the plate. There was no good basis – according to all relevant American norms – for Garland not to have been confirmed.
• The use of the “advise and consent” role to refuse to consider any nominee violates the spirit — even if does not violate the letter — of the Constitution. No system of rules can articulate every prohibition. Of necessity, a great many “rules” are simply implied. All such systems must depend on the good faith, and respect for the system, of those within it. McConnell – and every other Republican senator – showed no such good faith or respect, and simply exploited the inevitable unstated rules that the framers assumed would be “understood.”
• Rightfully, the seat Gorsuch occupies is Merrick Garland’s.
• The protest against “Gorsuch on the Court” should be waged not only against the illegitimate right-wing majority in the Supreme Court, but also to also publicly shame and discredit Senator McConnell and all those Republican senators who were his accomplices in that theft.

2) The Democrats have lost the Court through their weakness.

• Democratic weakness in the battle for the Court goes back decades. For years, the Republican Presidents became increasingly ideological in their attempt to move the Court to the right in the service of corporate interests. And during most of that time, the Democrats in the Senate remained committed to an old ethic which restrained the Senate from fighting for their own ideological preferences in the confirmation process. (The case of Robert Bork was an exception.) Back during the Reagan years, I wrote an op/ed about how the Democrats were being outfought in the battle for the Court.
• The right-wing has worked continually for decades to create a right-wing Court. They’ve created organizations and think-tanks, and – like the farm teams of a major league baseball organization — they’ve groomed up-and-coming right-wing judges. Liberals have failed to match this persistent purposefulness. The result has been that the Court has moved so far to the right that liberals have ended up depending on Republican appointees (like Stevens) to refuse to go along, and then on justices (like O’Connor, and now Kennedy) who are very conservative, but refuse to be reflexively radical, to check occasionally the triumphs of the right. (That Reagan appointees became the “reasonable moderates” shows clearly how far the right has dragged the Court away from what had long been mainstream notions of justice.)
• All of that is fair play (except for the disingenuous testimony in the confirmation processes – “just calling balls and strikes”): the side that works harder and smarter is entitled to its victories.
• But when the Republicans denied President Obama’s constitutional right to name the Justice to fill the seat vacated by Scalia’s death, they crossed a big red line out of fair play into a violation of the clear spirit of the Constitution. (See above.) When the Republicans escalated their drive for control of the Court into a kind of war, the Democrats (especially President Obama) should have returned fire with all the weapons at their disposal.
• But even in the face of this attempted theft, the Democrats allowed themselves to be outfought. In the months following McConnell’s indefensible statement that the Senate would not even consider anyone nominated by the President -– giving one easily refutable “justification” after another — President Obama did no more than mildly register his objections. He could have excoriated the Republicans, castigated them to the rooftops, made their unprecedented and illegitimate tactics the central topic of the national conversation, put the Republican perpetrators of this indefensible theft on the defensive, called the people out into the streets.
• (Perhaps he could even have taken the Republicans to the Supreme Court: “Your honors, the integrity of our constitutional process requires that you declare that what these Republicans are doing is inconsistent with the intent of the framers of the Constitution when they assigned to the Senate the role of ‘advise and consent.’ To allow this to stand would establish a precedent inflicting lasting damage on our constitutional system.”)

3) But it is not too late to “Press the Battle”

• True, at this point, there’s no way to get Gorsuch off the Court. But shaming the right for its crime is not only still possible, it would be politically valuable. And moreover, it is a patriotic necessity.
• At the very least, protesting serves the nation by proclaiming the unacceptability of the right’s conduct. Protesting is therefore preferable to acquiescence, the alternative which allows the highest court in the land to proclaim, by its very composition, that crime pays, and that this is a nation willing to honor dishonor.
• Protesting can serve as a public accusation, a kind of “I know what you did last summer.” It disallows the pretense that the Court – thus composed, with its balance tipped illegitimately by this theft – can suitably represent the rule of law.
• Regular public declaration that “Gorsuch on the Court is an American Disgrace” can help hollow out the right’s dishonorable victory by delegitimizing the right-wing majority on the Court. They can hand down decisions that reward their theft, but they ought not be able to do that without the public being reminded that these are ill-gotten gains—and thus not worthy of the public respect traditionally accorded to the Supreme Court.
• It might, by applying a kind of moral pressure on that unrightful right-wing majority on that Court, induce that majority to soft-pedal its plutocratic agenda.

4) The protest should attack the illegitimate right-wing majority, not Gorsuch per se

• What should be denounced is not “Gorsuch” himself so much as “Gorsuch on the Court.” The he was given is not rightfully his. It was stolen from Merrick Garland, who indisputably should have been confirmed.
• Gorsuch himself is relevant only inasmuch as his history reveals him to be an instrument of the plutocratic power in America. The manner of his rise, the way he’s been groomed by the plutocracy, reveals clearly the nature of the interests who have placed him on the Court—the same interests the Republicans were serving when they deprived Liberal America of the rightful fruits of its victory in the 2012 presidential election.
• The blow to our constitutional order represented by this theft of the Supreme Court is of a piece with how the 5-4 right-wing majority on the Court before Scalia’s death used its power to shift power from the American system of democracy to the rising Money Power: 1) opening the floodgates to money-power (Citizens United and McCutcheon), 2) gutting the Voting Rights Act to facilitate the disenfranchisement mostly of citizens who tend to vote against America’s more plutocratic political party, and 3) consistently ruling in favor of corporate interests at the expense of protecting the average citizens whom the American government is supposed to express and serve.

5) All of which shows that the theft of this Court seat must be understood as part of the ongoing dismantling of American democracy by the Plutocratic Power. 

• It is easily shown that the power of wealth in our political process, and of the corporate system in particular, has been growing in recent decades, and the power of the people has been correspondingly diminished.
• This erosion of the basic democratic nature of the American system of government is a national crisis of the most profound sort.
• The long-term effort of the right to take over the Court should be understood as predominantly an instrument of the ongoing power-grab by an amoral Plutocracy.
• Cultural issues (like abortion) should be understood as essentially a political tactic to distract Republican voters. Gorsuch on the Court may vote as cultural conservatives would wish on issues like abortion, but such matters are irrelevant to the interests of the Plutocracy to transfer power and wealth from the citizenry to itself. On the questions that bear upon the quality of life of those Republican voters, and the prospects for their children –on which other people’s decisions about their pregnancy, and their sexuality will have no impact — Gorsuch will predictably injure the right-wing voters who have celebrated Gorsuch’s elevation to the Court.
• The theft of this seat, therefore – abusing the Constitution by misinterpreting “advise and consent” in a grotesque way – is of a piece with the overall goals of the plutocratic force that engineered the theft: a contempt for American democracy is what unites the means (the theft) and the ends (takeover of America by Big Money).
• Protesting “Gorsuch on the Court” is therefore a means of engaging on one crucial battlefield in the major political battle of our times: the battle to rescue American democracy from the Money Power that has been hijacking it in our times.

6) Conducting mass protests every time the right wins a 5-4 decision is an apt way to put the spotlight precisely on the Plutocracy’s ill-gotten gains from this sorry, disgraceful, democracy-degrading episode.