Gorsuch And The Further Destruction Of Our Democracy

I was going to write a story about the media and the citizenry vastly underestimating the damage the Merrick Garland/nuclear option power grab executed by Mitch McConnell and the GOP had done to our democracy. But it appears that I will have to include some congressional Democrats in the group who seem oblivious to what has just happened.

The Republicans in the Senate have permanently broken the Supreme Court. It will now just become another political organ in partisan warfare and, unless the Justices find some way to find some common consensus on the divisive issues in front of them, something that seems highly unlikely, the Court will lose the power and respect that it needs to be the final judicial arbiter in the land. Every 5-4 decision that the Court will make from here on out will be considered a purely partisan decision that a majority or near majority of the people will consider either not credible or illegitimate. Yes, we all know the Court has been political for a long, long time, but the Justices were there because they went through a democratic process where the minority had some input and control. That all went out the window with Neil Gorsuch.

By not having a hearing or a vote on Merrick Garland, McConnell and the GOP created more than just the precedent that a president will not get to appoint a Justice in the last year of his term. By imposing the nuclear option to seat Gorsuch, they created the precedent that no president will ever be able to appoint a new Justice unless the Senate is controlled by the president’s party. And they have opened the floodgates to further destruction of the Court and our democratic norms and institutions.

Many rank and file Democrats, myself included, believe that Democrats would be perfectly within their rights to pack an additional two seats on the Court the next time they control the White House and the Senate. And that move will just set off another spiral of recriminations from the GOP, turning the Court into just a political rubber stamp for the ruling party. And I don’t think the media or the general public understands just how angry Democrats are about having the swing seat on the Supreme Court stolen by the GOP or how damaging this is to the fabric of our democracy.

For the last few decades, the rules always seem to change, always to Democrats’ disadvantage. We had the presidency stolen in 2000 by the outrageous Bush v. Gore decision that installed the popular vote loser as President. Mid-decade and extreme gerrymanders further diluted Democratic power. More racial gerrymandering and voting restrictions that clearly target Democratic voters have more recently been implemented by Republican-controlled legislatures. And Democrats have largely let these anti-democratic moves stand, while trying to fight them through the normal legislative, judicial, and political channels.

But the actions of James Comey and the resulting election of Donald Trump due to the anti-democratic nature of the Electoral College along with the treatment of Merrick Garland and use of the nuclear option to install Neil Gorsuch has fueled an anger in the Democratic base not seen since the 1960s. Rank and file Democrats realize that the Republican party has and is engaged in the destruction of our democratic system solely to maintain power. The epitome of this attack is Trump’s and the Republicans’ blatant disregard for the Emoluments Clause and the inherent corruption in the Trump administration.

Democrats in Congress, however, seem to be oblivious to what their base sees as clear as day. The parts of our democratic process that Republicans break, Democrats in Congress seem to still believe they can put back together. Over the weekend, Ed Markey, Senator from Massachusetts, said, “When the Democrats return to the majority and capture the presidency, which we will, that day is going to arrive, we will restore the 60-vote margin. We will ensure that, for the Supreme Court, there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people that are nominated, rather than just someone who just passes a litmus test.” The ridiculousness of this idea is hard to overstate. Simply abiding by one set of rules while Republicans create their own rules is political suicide. And, unless Democrats can find a way to ensure that Republicans can never repeal that 60 vote rule for Supreme Court Justices, it is worthless. And even if Democrats could ensure that, they should not reinstate the 60 vote threshold until they have rectified what happened to Merrick Garland, either by impeaching Gorsuch and putting Garland on the Court or by packing the Court with two new Democratic-appointed Justices.

Last week, Rachel Maddow had a segment that basically asked the question of how the country gets back to “normal” after the Trump administration. How can we ensure candidates release their taxes? How can we ensure that the President is not personally benefiting from holding the office? How do we ensure that every vote counts? How can we ensure the Supreme Court is not a rubber stamp for the party that controls the Senate and the White House? These were all essentially rhetorical questions because the answer is clearly that we can’t. Once broken, like Humpty Dumpty, the norms and institutions of democracy are not easily put back together. The only way it will happen is if the Republican party as we know it today disappears entirely and becomes a party interested in governing as opposed to simply maintaining power. But with the radical gerrymandering that keeps so many GOP seats safe, it is hard to see the party moving away from its extremist positions any time soon. And the sooner Congressional Democrats realize that and act accordingly, the better.