Gorsuch And The Future Of The Democratic Party

UPDATE: Obviously Chuck Schumer took my advice to filibuster Gorsuch!

Neil Gorsuch effectively bobbed and weaved and smarmed his way through his Judiciary Committee hearings in what has become a pretty dreary replay of Supreme Court confirmation hearings. Most nominees essentially refuse to answer any tough question by immediately retreating behind the façade that they can’t really comment because that issue may well come before the Court. So, aside from an explosive personal revelation or criminal history, it is hard to see these hearings as anything but a rubber stamp for any nominee whose party controls the Senate.

That does not mean that Democrats did not get some good shots in. And some of the cases they highlighted showed just how rigid and outside the mainstream Gorsuch can sometimes be with his strict “originalism”, a term that has replaced “conservative” but means much of the same thing. Al Franken nailed Gorsuch on his ruling in what’s known as the “frozen trucker” case. In that case, a truck driver whose brakes had failed pulled over and called his company for help. His employer instructed the driver to wait with the truck until that help arrived. That proved to be a long time coming and with temperatures at about 15 below zero, the trucker began to suffer from hypothermia. Again instructed to stay with the truck, the driver was left with a choice of freezing to death or continue to drive his truck with failed brakes, thereby endangering other on the road. He decided to compromise, unhitching the cab from the trailer and slowly driving to safety. His company fired him and the driver sued. Gorsuch ruled for the company, saying the law provided no right for employees to operate company vehicles in a way the company forbids. To take Gorsuch’s ruling to its ultimate conclusion, the law required the trucker to freeze to death, whereupon the law would step in and presumably charge the company with some kind of crime which we all know would probably result in a fine. Franken noted the absurd situation that Gorsuch’s reading of the law put the trucker in, but that did not seem to bother Gorsuch one bit.

One of the positives for Gorsuch was how infrequently his decisions had been overturned on appeal. But that image suffered a pretty big blow when, at the same time he was testifying, the Supreme Court ruled unanimously, 8-0, that his decision in a case involving the Individuals with Disabilities Education Act (IDEA) was wrong and is now overturned. The case involved an autistic student whose parents were seeking reimbursement for tuition at a school specializing in autistic children under IDEA. The IDEA law requires that public schools provide free and appropriate education for disabled students using federal monies allocated for that purpose. The specifics of the law say “The instruction offered must be ‘specially designed’ to meet a child’s ‘unique needs’ through an
‘[i]ndividualized education program'”, as Chief Justice Roberts said in support of the decision. Gorsuch, on the other hand, had taken the view that the education provided the disabled student was lawful in that it only needed to “merely be ‘more than de minimis’”, and denied the parents’ suit. That was an unusual reading of the law, especially as an earlier ruling from Gorsuch’s own Tenth Circuit appeals court had ruled that education needed to be “more than de minimus.” That ruling set a baseline for the minimum that could be done to potentially comply with the law. Gorsuch completely turned that ruling on its head and, by adding the word “merely”, making it the ceiling for what would comply with IDEA. Justice Roberts’ ruling was brutal in its rebuttal of Gorsuch, saying, “When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly . . . awaiting the time when they were old enough to ‘drop out.’” An 8-0 reversal is a pretty stunning reversal, especially coming from the Roberts’ Court and the way Gorsuch turned the meaning of the law’s minimal requirement on its head again shows how out of the mainstream some of his opinions really are.

Sheldon Whitehouse landed a glancing blow in his questioning over Citizens United and “dark money”. Specifically Whitehouse wanted to know whether Gorsuch agreed with Clarence Thomas that forcing disclosure of monies spent on political speech actually chills speech and would be a violation of the First Amendment. It is a bizarre theory that simply having to identify yourself as a speaker chills free speech, while remaining anonymous is perfectly fine. And Gorsuch did admit that he believed that disclosure may “chill expression” at certain times. Again, this is a position that is pretty well out of the mainstream. But Whitehouse had more, which highlighted the absurdity of Gorsuch’s response. Specifically, Whitehouse asked why certain unknown groups were spending millions to support his nomination. Gorsuch dutifully answered, “You’d have to ask them.” Whitehouse himself responded, “I can’t because I don’t know who they are. It’s just a front group.” Yes, it was kind of a cheap shot but it only highlighted Gorsuch’s ridiculous position.

Democrats in the Senate have to make up their mind about whether or not to filibuster this nomination. With the unethical and hyper-partisan treatment of Merrick Garland, will they allow Republicans to steal control of the Supreme Court for another generation. If they do filibuster Gorsuch, it is assumed that McConnell will change the filibuster rule for the Supreme Court and ram Gorsuch through anyway. Now there are reports that Democrats may be willing to make a deal with Republicans on Gorsuch. One deal would be to allow an up-or-down vote on Gorsuch but restore the filibuster for lower and district court nominees that Democrats and Harry Reid did away with after years of Republican filibusters. It is hard to see McConnell going along with that one, especially now Republicans have power. Another deal would be that Democrats may be willing to accede to Gorsuch in return for a promise to not break the filibuster rule when the next nominee comes up. This is designed to protect the spots of Ginsburg and Kennedy if they die or retire.  But McConnell has broken his word before with Harry Reid. And the Democratic base will be furious if Senate Democrats allow Gorsuch through without a fight. One of the Democrats’ biggest concern with McConnell breaking the filibuster rule for Supreme Court nominees would be that the only filibuster left would for legislation and soon that would also be under attack.

My advice, which is worth less than a copper penny, would be to go ahead and filibuster Gorsuch and see if McConnell is really willing to break the filibuster for Supreme Court nominees. My guess is that he would. Republicans have been destroying the democratic norms in this country for decades now and they aren’t about to stop. Just look at the entire Presidency of Donald Trump, with his blatant violation of the Emoluments Clause and the refusal to release his taxes. Meanwhile, Democrats continue to hamstring themselves by trying to uphold and adhere to the rules. If the refs aren’t going to call the foul, don’t call it on yourself. And if the legislative filibuster goes down too, so be it. As the Trumpcare bill has shown, Republican rhetoric is a great way to win elections. But when Republican policies actually get made into law, they are incredibly unpopular. Democrats need to have the courage of their principles. Demographics in this country are in our favor. At some point, Democrats will again, sooner rather than later, have total control like Republicans do now. At that point, I would consider packing the Court, telling the GOP to remember Merrick Garland, and dare the Republicans to stop us. Without the legislative filibuster, Democrats could pass their legislative agenda that would actually benefit the people that mostly vote against us. And once they have what Democrats provide, it will be hard to take it away. Just look at the ACA. Without the filibuster, we would not have ended up with the kluge that is Obamacare. But even that is more popular than what the Republicans are offering. The damage in the interim will indeed be great but that will only hasten our return to power. For decades, Republicans have made hay by voting for terrible legislation that sounds great on the campaign trail with the full knowledge that it would never become law. Why should Democrats provide them cover anymore. Let the GOP take the heat for the horrible policies they want to implement. When Democrats stand up for their principles, although it may take a while, in the end we will win.