Neil Gorsuch and the Erosion of America’s Institutions

“At some point, we have got to recognize that we’re destroying our institutions.”

Those words, spoken by U.S. Supreme Court Justice Clarence Thomas last October, came in response to a question about the judicial confirmation process and the vacancy left on America’s high court by the untimely death of Antonin Scalia .

Justice Thomas was quite obviously referring to the successful obstruction by Senate Republicans of Barack Obama’s SCOTUS nominee, D.C. Circuit Court Chief Judge Merrick Garland. Thomas, of course, is no stranger to controversial nominations.

But Thomas’ comments also came near the end of an historically ugly presidential campaign in which the nominee of one of America’s two major political parties had promised to “drain the swamp”—code, as we’ve begun to learn the hard way, for “burn the fucker down.”

Former President Barack Obama (OH GOD IT STILL HURTS) tapped into a similar sentiment when delivering his farewell speech just days before leaving office:

…[O]ur democracy is threatened whenever we take it for granted. All of us, regardless of party, should throw ourselves into the task of rebuilding our democratic institutions (emphasis added).

Struck when I first heard them, I’ve been reflecting on the words of Messrs Thomas and Obama again this week as we have watched the drama unfold surrounding Neil Gorsuch (“of the United States Supreme Court to be of the United States Supreme Court”) and his did-he-didn’t-he-sorta-private-sorta-public condemnation of Donald Trump’s attacks on the judiciary after California’s Ninth Circuit Court of Appeals upheld the stay on his Muslim/travel ban.

Alternative facts. The Bowling Green Massacre. Dismissing responsible media outlets as fake news when their reports are unflattering. Attacking the independence of America’s judiciary. Donald Trump is giving the American people a masterclass in what it looks like to facilitate the total erosion of our democratic institutions. 

I can recall back in 2005, when President George W. Bush nominated John G. Roberts Jr. to be the next Chief Justice of the Supreme Court, the late Senator Arlen Specter articulated his understanding of what the Senate’s constitutional mandate of advice and consent ought to look like in practice. It went something like this:

1) Elections have consequences 2) We need a fully-functioning Supreme Court 3) The president has the constitutional obligation to nominate justices to the Court 4) If those nominees are well-qualified and of a high moral character, they deserve to be confirmed—even if we don’t agree with their judicial philosophy.

Specter’s governing instincts were right then. They were right when Bush later nominated Samuel Alito to the Court. They were right when Obama nominated Sonya Sotomayor and Elena Kagan. They were right when Obama nominated Merrick Garland. And they’re right today, with the nomination of Neil Gorsuch.

Gorsuch is an extremely well-educated and eminently qualified judge. He is clearly a person of high moral character. And so I—a liberal who finds his judicial philosophy problematic and understands that his appointment will shift the balance of the Court in a direction I do not want—believe Judge Gorsuch should not only be given an up or down vote on the Senate floor but should also be confirmed by that same body.

Because elections do have consequences. We don’t live in an Athenian democracy (nor should we), but in a constitutional republic. When we do our civic duty by electing our representatives, we should expect them to do theirs by upholding and strengthening our democratic institutions.

Kentucky Senator Rand Paul demonstrated Thursday just how hollow his so-called “constitutional conservatism” really is. In an interview on Morning Joe, Paul seemed not to care about Trump’s attacks on the judiciary because “the Constitution does not forbid the president from having opinions about the Court.”

And that’s true. But upholding and strengthening our institutions ought to mean more than merely following the the letter of the law; the spirit of the law matters, too.

We are losing our grip on well-established customs that have informed the manner in which our elected representatives carry out their constitutional duties, and in allowing those (mostly beneficial) norms to erode, we are testing the mettle of not just our institutions but the Constitution itself.

So this obstructionism—already perfected by Mitch McConnell and taken to another state of reality by Donald Trump—needs to stop.

But if we’re destroying our democratic institutions, what does it mean in practice to rebuild them?

For a start, I think it means encouraging politicians from the other side of the aisle who display a clear commitment to the common good over partisan political rancor. Republican Senators Ben Sasse and Jeff Flake stand out this week as examples of fine public servants who have shown real courage in disavowing the actions of a president from their own party when other, more senior Republican leaders have been unable to do so.

It also means consciously choosing to rise above the entirely unforgivable obstructionist bullshit propagated by Mitch McConnell in 2016 by supporting the appointment of a supremely qualified judge to the highest court in the land. The preservation of our democratic institutions matters more in the long run than one seat on the Court—as painful as that is.*

As Barack Obama said later in his farewell speech:

…[A]ll of this depends on our participation; on each of us accepting the responsibility of citizenship, regardless of which way the pendulum of power swings.

Our Constitution is a remarkable, beautiful gift. But it’s really just a piece of parchment. It has no power on its own. We, the people, give it power – with our participation, and the choices we make. Whether or not we stand up for our freedoms. Whether or not we respect and enforce the rule of law. America is no fragile thing. But the gains of our long journey to freedom are not assured.

And he’s right, of course.

So we support good, decent political leaders—even the ones we disagree with. And we support the strengthening of our democratic institutions—even during those times when they don’t tilt in our favor.

And we work our asses off and we vote and we elect a Democratic president who will fill the next Court vacancy with a well-qualified justice of a high moral character who doesn’t think corporations are people.

And until then, somebody please find Ruth Bader Ginsburg a heart-in-a-box machine or some other life support device to keep her on the bench through 2020.

*Setting aside the moral high ground for a moment: the way Mitch McConnell navigated the same Garland nomination was utterly shameful. And the Senate should change its rules to prevent this from ever happening again. And seriously fuck you Mitch you lousy son of a bitch.

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