The Gorsuch hearings: Will Democrats join the Resistance?
Neil Gorsuch (left) tries to answer tough question put to him by Senator Al Franken, D-Minn. /AP

WASHINGTON – Over the past several weeks, Democrats in the Senate have refused to participate in hearings held by Senate committees that were sure to rubber stamp Donald Trump’s nominations for heads of departments and agencies.

By boycotting the committees, the Democrats weren’t able to stop the confirmation of any of Trump’s picks, but that wasn’t the point.

The senators were helping to galvanize the growing Resistance movement against Trump. They knew that in the long run, building a solid movement to defeat Trumpite representatives and senators in coming elections was more important than any short term advantages there might be in going along to get along.

In fact, the senators were living up to Massachusetts Senator Elizabeth Warren’s statement that “we are not a minority party, we are the party of the opposition.”

So why aren’t Democrats boycotting the Senate Judiciary Committee hearings on the nomination of Neil Gorsuch for the Supreme Court?

I hope it’s not because they’ve given up on movement building.

I hope it’s because that by taking part in the hearings, the Democrats feel they will have credibility to exercise a little-used power that might actually scuttle the nomination.

The Democrats could, if they decide to, filibuster the nomination when it comes before the full Senate for a vote. It takes 60 votes to shut down a filibuster, but there are only 52 Republicans in the Senate and getting eight Democrats to vote with them would probably be impossible.

Bad news

Meanwhile, many Democratic senators have said they agree with Minority Leader Chuck Schumer, D.-N.Y., that “there should not be a vote on Gorsuch while the FBI is still investigating Donald Trump.”

The fact is, Gorsuch was able to be nominated only because the Republicans ignored the U.S. Constitution and would not hold hearings on Merrick Garland, President Obama’s nominee to fill the Supreme Court vacancy created by the death of Antonin Scalia.

So today we have a Supreme Court vacancy that exists only because of a non-constitutional maneuver and a Supreme Court nominee chosen by a president whose election might have been tainted.

Aside from all that, Gorsuch himself is bad news.

When serving in George W. Bush’s Justice Department, he helped to “legitimize” torture and to craft voter suppression schemes.

As a judge on the 10th Circuit Court of Appeals and in his writings, Gorsuch has proven himself to be against women’s rights, for corporate billionaires, against workers, for religious bigotry, against religious freedom and against the rights of disabled people.

Just yesterday the Supreme Court overruled his decision that school systems are only required to provide disabled students with a very minimal level of aide. The Court said that on the contrary, the law requires school districts to give students with disabilities the chance to make meaningful, “appropriately ambitious” progress.

What’s more, Gorsuch has come up with a philosophy that would turn judges into dictators.

Legal reporter Melina Mara explains in the Washington Post that “In 1984, the Supreme Court decided a case called Chevron v. NRDC, and said that when the words of a statute are ambiguous, judges should defer to the expert opinions of the federal agencies charged with carrying out the law.”

The Court has applied this principle ever since, and the majority of cases in which Chevron is used involve federal regulations that protect workers and consumers.

However, Mara reports that in one of his decisions Gorsuch stated that the Chevron principle “permits executive bureaucracies to … concentrate federal power… . Maybe the time has come to face the behemoth.”

This is very close to the thinking of white nationalist Steven Bannon, a top Trump advisor, who says he wants to dismantle the “administrative state.” He has implied he wants to replace democratically-elected administrations with the law of the jungle: the strongest and richest individuals rule over the rest of us.

If Gorsuch has his way, judges would become top dogs.

The 60-vote rule

How far will the Democrats go to prevent Gorsuch from becoming a Justice on the Supreme Court?

So far, they’re sending mixed messages.

Senator Dianne Feinstein of California, the top Democrat on the Judiciary Committee, says that to her, Gorsuch “is a bit of a puzzle,” and that “We’re going to try to put those pieces together,” before she decides her position.

And one of Gorsuch’s own senators, Democrat Michael Bennett of Colorado, said that even though the GOP blocked Garland for political reasons, Democrats should not take that into consideration when considering Gorsuch. “Two wrongs never make a right,” he said.

On the other hand, when Judiciary Committee member Senator Al Franken, D.-Minn., was questioning Gorsuch, he said that “you have favored corporations over workers, big business over the little guy. You have shown a bias for big money” that should not be represented on the Supreme Court.

And Minority Leader Schumer has repeatedly stated that “Trump’s Supreme Court pick will need 60 votes to clear the upper chamber.”

Senator Bernie Sanders D.-Vt., and many other leaders have said the same thing.

Would the 60-vote strategy work?

Maybe, maybe not.

But what’s the worst that can happen? Gorsuch gets on the Supreme Court.

Without using the filibuster, Gorsuch gets a seat on the Court for sure.

If Gorsuch is sidelined, would Trump’s next pick be any better? Maybe if the Democrats show real gumption now, the GOP will agree to negotiate with them next time.

And whether or not the 60-vote strategy works, using it would help Senate Democrats build trust among the millions of Americans who are looking for leaders to stand up to Trump. It would also help generate hope and energy among Resistance activists who will be needed to make gains in the 2018 elections.

The fact that a Fox News poll recently showed that with a 61 percent approval rating, Bernie Sanders is by far the most popular politician in America should prove to Democrats that Americans want activist-politicians, not just inside-the-Beltway practitioners.

A recent editorial in the San Francisco Examiner said, “Senate Democrats should filibuster Donald Trump’s nominee, Neil Gorsuch, not because Gorsuch is an ultra-conservative clone of the late Antonin Scalia whose values are inimical to a liberal democracy, but because Republicans have cast aside democratic norms in favor of partisan domination. …

“The empty SCOTUS seat was Obama’s to fill.”


Larry Rubin
Larry Rubin

Larry Rubin has been a union organizer, a speechwriter and an editor of union publications. He was a civil rights organizer in the Deep South and is often invited to speak on applying Movement lessons to today's challenges. He has produced several folk music shows.