So, today the Senate Republicans just further undermined our American principle of fair transfer of power, which in this case means that the party affiliation of the nominee is not what should matter when considering whether to confirm a supreme court seat. By doing so, they are demonstrating a willingness to delegitimize the court and undermine democracy with a court-packing plan, as Sen Jeff Merkley pointed out during his filibuster. We are apparently entering an era where no party names anyone to any courts unless they have both the presidency and a majority in the Senate. And, when they do, they get to benefit from the prior periods of gridlock, when court numbers dwindled simply from the attrition due to time.
So, if you want to fight back and fix the Supreme Court (actually, the entire federal judiciary...), then step one is, as always, acknowledging that there is a problem, and repeatedly pointing it out at every opportunity that the court’s legitimacy has been undermined. A stolen seat = a stolen court = stolen justice for the American public. Period. And the public should be reminded of that theft every single time this rightwing court majority undermines their rights with Gorsuch’s assistance in a decision.
The majority of this country voted for Clinton last year, and Barack Obama in 2012. Obama had every right to fill that seat. If the “fair transfer of power rule” were still operative, there would have at least been hearings. Instead, all Obama got was utter contempt. And that is all that Neil Gorsuch and every majority decision he is a part of deserve, especially when Mr. Gorsuch (Do NOT call him “Justice”—that has been stolen from us and from that court!) is a deciding vote in a 5-4 decision. Protesters should follow him wherever he speaks, wherever he lives, as a constant, personal reminder of the Devil’s deal he accepted when he took this seat under such a cloud of circumstances. Calls for his resignation—for the good of the court—should happen regularly.
Although attorneys in USSC cases are unlikely to do so so as not to harm their clients’ chances, it is important that the other Justices and “the system” feel the sting to the court’s reputation as well. As such, maybe interested amicus curiae could file regular recusal requests based on the perceived illegitimacy of Mr. Gorsuch. Maybe interested members of the public will start calling the supreme court clerk to ask for the same on a regular basis. Make sure that the Senate Republicans see a sign about stealing the court and stealing justice from the American people in every future protest of any future 5-4 decisions that Gorsuch is part of. Make sure his tainted place on the court stays prominent, and make sure that it is an anvil hung around the Republican party’s neck.
Additionally, any case where Gorsuch is a deciding vote should immediately be considered suspect as legal precedent. The issue of the prior decision’s legitimacy should be raised in the court briefs that argue against it’s applicability. All Gorsuch decisions are tainted and therefore suspect, and that taint should have legal consequences. A future liberal supreme court should not be shy about overturning such precedents when necessary, and our complaints and actions and protests now will lay the necessary groundwork and predicate for that to potentially happen.
The fact is that the Republicans last year promised that “the people” would decide the supreme court issue. Sure, it was a canard to cover their raw power grab, but we should wrap that canard around their necks very very tightly. The majority voted for Obama in 2012, the majority voted for Clinton in 2016, and the majority voted for a more liberal-leaning supreme court to replace Scalia. And Democrats in office would do well to stand up for that majority, regularly and repeatedly. I’m talking dog with a bone that we don’t intend to let go of until the matter is fixed. The Republicans should be reminded of it, and the public should be reminded of it.
And fixed does not mean we re-institute so-called “bipartisanship” in the Senate if/when the Dems regain control of the chamber. No, the Republicans won’t get off that easy for what they’ve done. FIXED is when we have a Dem house, a Dem Senate, and a Dem presidency again, at which point we WILL expand the court by 2 seats to 11 (one seat to neutralize Gorsuch, another to give the public the more liberal majority on the court that they voted for twice now). This has the added benefit of keeping the Court at an odd number.
And, if the Republicans DARE steal another seat like that in the meantime, then we’ll plan to one day expand the court by 4. or as many as is necessary to rebalance it. If you don’t want what they’ve done to be repeated, then it is important that it’s clear that there will be consequences—ones with teeth for everyone involved in this travesty of justice. And the Democrats will not be seen to hear their then-screams of “court packing.” No, we’ll be saving the court from what they’ve done to it, by trying to pack it themselves with Gorsuch now. So, they have no standing to complain if we do this, this time in service to the actual majority of the country rather than in contravention of it.
I open the floor to other suggestions.
