Justice Denied: A Progressive Response to the Confirmation of Judge Gorsuch to the Supreme Court

By Bill Mefford

Though we should never be surprised by the hypocrisy coming from politicians in Washington DC these days I still was somewhat surprised by the actions of Senate Republicans on Thursday. After spending the last eight years obstructing the every move by President Obama, Senate Majority Leader McConnell and his caucus could not even wait eighty full days before they decided to blow up the rules of the Senate and go nuclear in order to confirm the stolen Supreme Court seat for a judge who most see as more conservative than Antonin Scalia. McConnell is counting on the country having either a short memory, or just simply amnesia. And I am afraid he is right.

Very few people in the media are looking at the confirmation of Gorsuch for the Supreme Court in the context of the last five to ten years. And I say this up front – I am hardly an Obama apologist. I fought him tooth and nail on his willingness to compromise on continued tax cuts for the wealthy, his over-reliance on deportations, and the slow crawl towards criminal justice reform where he did little in his first term (though he did, thankfully, finish with a flourish). But let’s be honest, the Republican Party essentially was rewarded with total control of the government by being completely obstructionist for eight years. They said no to every agenda item put forth, they were silent when donald trump began his crazy five year campaign to delegitimize Obama’s citizenship and presidency, they offered no alternative ideas to the policies they simply said no to, and they actually made a divided Congress and divided country – two things they actively worked to create – a campaign wedge issue!

The Republican Party and the idiot talking heads on the radio and Fox “News” who actually lead the party may not be trustworthy in any sense of the word, but man, do they have balls.

So, now we will be stuck with Neil Gorsuch for a Supreme Court justice. You know what is going to drive me crazy now? People will shrug and go on and say, nothing can be done. On to the next thing, let’s put this behind us. But the bad news has only started from what I can see. Even Lindsay Graham, a Republican from South Carolina, has said adopting the nuclear option so soon (only 75 days in!) and confirming SCOTUS appointees by only a majority vote rather than the 60 votes need for cloture makes the likelihood that debate and deliberation – something the Senate has been known for (read Master of the Senate by Robert Caro for excellent background on this) – less and less common. Not too far off in the distance, perhaps when donald trump gets pissed at Luxembourg and wants to nuke ‘em, the Republican leaders in the Senate could decide that they need to invoke the “nuclear option” to fund his war effort. Or they could go nuclear to prevent an impeachment proceeding. Or they could nuclear to give even greater tax cuts the oppressed upper class in the country; the victims of the Left’s “class warfare.” This is a dangerous precedent, especially when current Senate Republican leadership has shown so little self-awareness or self-control.

But the vote to put Gorsuch on the court is mainly dangerous simply for who Gorsuch is. His hearings brought little of this to bear because that is what the hearings are really about these days. The main goal for Gorsuch, like all appointees, was to say little to nothing. Mission accomplished.

But let’s remember, this is the guy who said that Hobby Lobby was right to refuse their employees access to reproductive healthcare (even though they owned stock in companies that sell contraception!) because corporations are people and like people, they have religious rights. Supposedly Gorsuch is an “originalist,” meaning that he only takes the Constitution for what it said originally at that time, but yet, he somehow makes the magical leap that the Founders wanted to give religious rights to corporations long before corporations ever existed!

So beware, my friends, of who you work for. If you have a religious right wingnut for a boss who believes that women should not be in leadership of men, or that women should not have uncovered heads while indoors, or that women should not wear what they believe to be “revealing” clothing (anyone noticing a trend here?), then Gorsuch will likely take the side of your corporate wingnut bosses.

But even more, Gorsuch repeatedly refuses to take into account the context in which legal disputes take place. He is a strict legalist when it comes to personal rights. When Gorsuch refuses to allow a professor recovering from a bone marrow transplant a few extra days of paid sick leave so that they do not contract the flu virus that was spreading across their college campus at that time; or when he refuses to allow legal redress for a frozen trucker who chose to save his life over his truck and was fired for it, or when he refuses to allow an autistic student access to better education; in all of these cases and in many more, Gorsuch has ruled rigidly in favor of institutional status quo and against the needs of individuals who deserved so much better if only they had had a judge who could empathize.

This week I have been reading Taming the Storm by Jack Bass. It is a biography of Judge Frank Johnson, an appellate judge from Alabama during the Civil Rights Movement when he defied the racist society he lived in and made significant rulings in favor of the heroes for justice. Towards the end of his 33 year judgeship Johnson made a speech where he talked about what he felt was necessary to the role of the courts in achieving justice. I think those words are important to heed now:

Deny an individual some means to redress justice, and he or she becomes bitter and cynical. Deny a whole class of people the means to put right such wrongs, to remove the sense of injustice, and the inevitable result is a social unrest….It is essential to the stability that those whom change hurts be able to count on even-handed justice.”

I don’t mean to be Debbie Downer, but we are in for a hard time for a long time. Judge Johnson’s words will no doubt not be heeded by Neil Gorsuch and we will all be the worse for it. But in spite of the horrible justice that has been selected to the Supreme Court, let us take heart. Let us not despair but fight all the harder. Let us go to town halls and shut them down if our elected members of Congress do not do what is right and just. Let us give them hell. Because that is sure what they have been giving us and will be giving us for years to come. It is only just we return the favor.

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