Rachel Sklar: Democrats were right to fight Gorsuch, because "not crazy" should not be the new definition for "normal"
When Nunes is a faded historical footnote, Gorsuch will still be on the Supreme Court determining the law of the land, she writes
Editor’s Note: Rachel Sklar is a New York-based writer and co-founder of Change the Ratio, which aims to increase visibility and opportunity for women in tech and new media, and TheLi.st, a network and media platform for women. She is a former lawyer. The views expressed in this commentary are solely those of the author.
The past 11 weeks of the Trump administration have looked anything but normal, except for one thing: the nomination of judge Neil Gorsuch to the Supreme Court. That announcement was rolled out with the traditional pomp by a President who followed the script, and a silver-haired nominee who spoke well and looked the part (insofar as such parts have always been cast with silver-haired white men).
A few weeks later, while the craziness surrounding the Trump administration swirled to new heights, (two words: Devin Nunes) the confirmation hearings went forward mostly as such hearings do, with Senators asking probing questions to which the nominee offered practiced, neutral responses. Despite some damaging moments (two more words: frozen trucker), the consensus was that Gorsuch had performed well, would be confirmed, and would notch up a rare win for Trump.
Now, all of this is in the rearview mirror. Neil Gorsuch has been sworn in as a Supreme Court Justice, and at 49, will likely serve many years of this lifetime appointment, likely outlasting most if not all of the current members. Meanwhile, the numbers suggest Trump will have more vacancies to fill in his term. That’s just how things work in the normal course of things.
But that’s all that’s been normal about any of this. And when things are not normal, you cannot behave as though they are.
That is why Senate Democrats were right to filibuster the nomination and reject it – by 44 votes, which meant that Gorsuch failed to meet the 60-vote threshold to win the nomination.
That threshold no longer exists. Senator Mitch McConnell, predictably, led a GOP vote to change it to a simple majority confirming their nominee to the court.
The whole thing seemed inevitable, and many wondered: why didn’t Dems keep their powder dry until it was really needed?
Because this time, it was really needed. Because “not crazy” should not be the new definition for “normal.”
This is a Supreme Court seat. Gorsuch will likely be on the Court for decades, and influencing bedrock law and policy for even longer. And even though every step of that process has been overshadowed – Comey! Nunes! Syria! – it still deserves to be examined, and remembered, for just how not-normal it all was.
This was never his seat. Okay, let’s just get this out of the way. Neil Gorsuch’s nomination was never normal, well before he was just a glimmer in the Heritage Foundation and Federalist Society’s eye. Because under the Constitution, President Obama had the power to appoint a justice to the Court to fill Justice Antonin Scalia’s seat, and he duly appointed Merrick Garland. But Mitch McConnell and his merry band of insta-Constitutional scholars insisted that the Constitution really meant that the President could only make that appointment for the first 75% of his term. Which no doubt was just what the framers meant to say!
And so Merrick Garland twisted in the wind as the GOP blocked any chance of his even getting a hearing – leaving the seat vacant and waiting for the next President. Which the Democrats have always firmly maintained was – what’s that word? Oh, right: stolen.
And of course, Russia: In addition to the lingering scandal over how Gorsuch was nominated, there is also a scandal looming over the legitimacy of the President who nominated him: very real, very serious accusations about Russia’s meddling in the US election, and the many questions about who on Donald Trump’s team may have known or been involved. Don’t just take my word for it – take the FBI’s, which has been investigating this since July. Senate Democrats protested, saying it was “nuts” to make a lifelong appointment from a Presidency under such a cloud, and Senate Minority Leader Chuck Schumer asked for a delay – perfectly reasonable given that Gorsuch will have to wait to join the next round of oral arguments.) Alas, “reasonable” is another word for “normal” and, as we know, that’s not how things roll these days.
Gorsuch’s far-right record: Here’s a whole other reason to block this nomination that has everything to do with Gorsuch: his record! Though Gorsuch was hailed as a safe, classic pick (Harvard Law, clerked for Supreme Court Justices White and Kennedy, years on the bench), a moderate he is not. Assessed as being to the right of Scalia (who voted against marriage equality, Obamacare, affirmative action, equal pay and abortion rights, and for Citizens United, Hobby Lobby and to water down the Voting Rights Act), Gorsuch is widely regarded by progressive organizations as a regressive threat to women’s rights and a stalwart of the religious freedom arguments that translate into denying women contraception and gay people consumer services. And he is widely regarded by anyone who watched his confirmation hearing as heartless on frozen truckers.
He didn’t actually say much: There’s no question Judge Gorsuch is charming – a folksy, football-loving, Douglas Adams-referencing, Byron White-loving guy who is also, it must be said, something of a silver fox. (Oh come on, you noticed. And you know Trump did.) But otherwise, he didn’t say much, preferring to subscribe to what I like to call the Ronan Keating theory of confirmation responses, which is to say, you say it best when you say nothing at all. (Not a love song, by the way! Just to clear that up, “Notting Hill.”)
But when Gorsuch was actually saying things, he was saying them rather patronizingly, particularly to female Senators, and in some cases barely concealing his annoyance at the temerity of being questioned at all. He had the dubious distinction of being accused of mansplaining not just to women, but to the entire Senate. So maybe he is for equal rights, after all! (Eh, probably not.) ThinkProgress Justice editor Ian Millhiser summed it up thusly: “Let-Me-Talk-Down-To-You-Like-I-Am-Your-Father Gorsuch is the worst Gorsuch.”
“I am a judge. I am my own man,” Gorsuch earnestly declared, which pairs nicely with Reince Priebus and Steve Bannon reassuring CPAC that he’d faithfully fulfill the Conservative mission. Which is the truth? Confirmation hearings are meant to help one answer such questions, not blandly smooth them over. How will he vote going forward? From what he actually said in his hearings, it’s hard to tell.
Follow the Dark Money: Gorsuch may not have talked much, but money sure does.
The Judicial Crisis Network launched a $10 million campaign explicitly to “preserve Justice Scalia’s Legacy” and “target vulnerable Democrat Senators” (after spending $7 million blasting the Garland nomination). Oh, and the NRA spent $1 million on an ad lauding Gorsuch.
During the hearings, Democratic Senator Sheldon Whitehouse noted the anonymity of the donors to the campaign and asked Gorsuch point blank why anyone would pay $10 million to support his confirmation. “You’d have to ask them,” said Gorsuch, deflecting. But JCN is certainly pretty clear about its priorities: anti-affirmative action, anti-contraception, anti-abortion, pro-gun rights and, of course, preserving that Scalia legacy. And lo, the investment paid off.
Things left unexplored: A news cycle on steroids meant that some potentially disquieting things about Gorsuch were barely a blip on the radar. Several female senators of color say that they were told Gorsuch would not be available to meet with them, despite multiple attempts to schedule such meetings. This included Kamala Harris, the former Attorney General of California. If so, that is eye-poppingly egregious. Also, shortly before the hearing, a former student alleged that Gorsuch told his class maternity benefits are a way for women to potentially exploit companies. (The student registered concerns about the incident with the University of Colorado Law School last April, five months before Gorsuch’s name was included on a list of potential Trump nominees, but the University confirmed that it had never informed Gorsuch of the student’s complaint and had not further investigated. The school apologized to both the student and Gorsuch for how the episode was handled.)
It would have been impossible to verify or debunk this claim without any sort of scrutiny – but it’s precisely the sort of claim that urgently merits it. Finally, an eleventh-hour story surfaced suggesting Gorsuch may have played fast and loose with attribution in some of his scholarly writings. (I spent some time looking at the impugned passages and it does indeed seem as though further scrutiny ought to have been applied). It may seem square to some, but whether or not a nominee to the Supreme Court hews to rigorous academic standards does matter in determining fitness for a lifelong appointment. None of these issues got the thorough examination they warranted.
Gorsuch was not actually “confirmed”: Not normal: when your SCOTUS nominee is not confirmed, so you change the rules governing the entire confirmation process for Presidential appointments in order to completely cut out the other party – in a two-party system – even when that party’s nominee actually won the popular vote. (By 2.9 million votes, it’s always worth noting.) Let’s say it again: Neil Gorsuch was not confirmed.
Each of these aberrations deserved further consideration by the Senate (and, it should be said, the media). Are they as bananas-nutty as Devin Nunes leaping out of his car to run to the White House for a cloak-and-dagger intel exchange? Obviously not. But when Nunes is a faded historical footnote, Gorsuch will still be on the Supreme Court determining the law of the land.
Gorsuch’s SCOTUS appointment is for life. Dems were right to think of all the other lives that appointment will affect. And fight for them. That’s the only normal any of us should be willing to accept.