People For the American Way

Why This Supreme Court Fight

News and Analysis

A lot of people have been asking me about the campaign to keep Trump nominee Neil Gorsuch off of the Supreme Court noting their frustrations (and a little bit of despair) about some of the false narratives that have been circulating about this nominee … and about our chances of stopping him.

It’s time to address some of these concerns and dispel some myths.

Another Scalia is not OK. It would be bad. (Very, very bad.)

Just because he’s often been described as ‘Antonin Scalia with a smile,’ and people generally have nice things to say about his demeanor and his intellect, does not mean in any way that Judge Gorsuch is within the mainstream of legal thought. His judicial philosophy actually places him to the right of Scalia in key areas of the law, and no one should forget that Scalia himself was an extremist — the original champion of a once-fringe judicial philosophy that made him the most reliable hard-right vote on the Court.

Just look at the most important issues that have gone in front of the Supreme Court in recent decades:

  • He was on the wrong side in Citizens United and the other decisions that effectively hung a “for sale” sign our democracy,
  • He voted to block marriage equality and uphold laws criminalizing same-sex relationships,
  • He repeatedly voted to chip away a women’s reproductive rights and voted for the Hobby Lobby ruling that said a corporation had “religious rights” that allowed it to discriminate against its women employees,
  • He voted consistently to weaken civil rights, environmental protections, safeguards for public health, workers’ rights, voting rights (including gutting the Voting Rights Act), and so much more.

NPR’s Supreme Court and legal affairs correspondent Nina Totenberg rightly calls Gorsuch “a disciple of Scalia’s crusade.”

“Scalia’s seat,” the 60-vote rule, and the “Nuclear Option”

Right off the bat, this is NOT “Scalia’s seat.” It’s The People’s seat.

In an op-ed titled “Make the Republicans Go Nuclear” in the New York Times, Senator Jeff Merkley (D-OR) writes, “Senate Republicans are in the middle of pulling off one of the great political heists in American history: the theft of a seat on the United States Supreme Court,” and adds, “This crime is going to do enormous damage to the integrity of the Supreme Court for decades to come. Every 5-4 decision of the court will have a cloud hanging over it.”

He continues:

“Categorical opposition to this nomination is not retribution for the treatment of Judge [Merrick] Garland. It is a refusal to be party to a tactic that will deeply hurt the Supreme Court and, consequently, the rule of law. Yes, the outcome may well be that Senate Republicans strike another blow against our institutions by eliminating the 60-vote rule. But let it be their choice. I am not prepared to be complicit in the undermining of our government.”

I’ll add one more thing to Senator Merkley’s great points — and this is important: right now, Republicans do not have the votes to execute the Nuclear Option. At least four Republican senators have stated on the record that they are opposed to changing the Senate rules.

We’re marching. We’re protesting. Americans are in the streets! But if not for this very fight, then for what?

This president is at war with our Constitution and with fundamental American values. His bigoted attacks on Muslims, immigrants, women, and others, as well as his nomination of a cabinet full of billionaire extremists who represent the Radical Right and corporate special interests, have awoken an unprecedented grassroots movement — far bigger than the Tea Party ever was.

All of this action is important! Exercising our free speech rights … showing the president, his allies in Congress, and the entire world that the right-wing Trump agenda is not the American Way and the People will rise against it… This truly is what democracy looks like.

But if this amazing energy is not harnessed and channeled into winning important fights in defense of our constitutional rights, the rule of law, and our foundational democratic institutions, then what is it all for?

This Supreme Court fight is the definitive “where the rubber meets the road” moment for the Resistance movement. Because if we roll over in this fight, then the Trump administration and its right-wing congressional majorities will surely roll over us. Trump will be emboldened and his policies — and nominees — will continue to get even more brazen and more extreme.

Think we won’t be able to make Senate Democrats stand strong? Think again.

Senate offices reportedly have been receiving 1.5 million calls a day this week from Americans concerned about various Trump nominees, his executive orders, and more. Senators are paying attention.

We already have an unprecedented eight senators who have announced their intentions to vote against this Supreme Court nominee. And that’s not out of retribution for the treatment of Merrick Garland — that’s because they’ve looked at Neil Gorsuch’s record (he was one of the most right-wing potential nominees on Trump’s list of unacceptable candidates) and concluded that his confirmation would be bad for the American people.

Our goal remains shoring up every single Democratic senator and swaying a small handful of Republicans to defect from Mitch McConnell’s ranks. We CAN do it. We just need to be relentless. If not now, when?

It’s a time for the People to lead our leaders.