While Russia’s involvement in our elections is unquestionably horrible, and it will likely take many more drip, drip, drips before we know the full extent of it, our democracy is facing an equally devastating threat much closer to home.
On Monday, when Judge Gorsuch’s confirmation hearing is scheduled to begin, the Republicans will attempt to complete their cynical political takeover of the US supreme court, launched last year when they failed to confirm or to even give a hearing to Judge Merrick Garland.
Never before has Senate leadership so openly and intentionally played political games with our highest court. Already, the legitimacy of the supreme court has taken a severe blow because of it. But, if Gorsuch is confirmed, it would lock in a dangerous precedent from which the legitimacy of our highest court might never recover.
Republican senators abandoned their constitutional responsibilities and blocked Judge Garland’s nomination last year, for 293 days, leaving the court without a deciding vote on critical issues. They offered no legal justification for their actions, fully admitting that their sole intention was to orchestrate a coup of the supreme court by betting that a Republican would win the White House.
Some even pledged to keep the seat vacant for four more years in the event that a Democrat won the White House. The severity of this action and what it will mean for the court if Gorsuch is confirmed cannot be understated.
Confirming Gorsuch would endorse and normalize unconstitutional political games. It would encourage both parties to use and expand this strategy in the future, at the expense of our highest court and its critical role in our judicial system.
This time it was the last year of a president’s term, next it will be the year before midterm elections. It won’t be long before it extends to the whole two-year presidential campaign, amounting to three years of any presidential term where a supreme court seat cannot be filled
And it is not just the supreme court that will be affected, as the strategy will be used to block appointments to lower courts. This is a slippery slope that ends with decimating the legitimacy of an entire branch of government, and the resulting checks and balances on which our democracy depends.
I have always considered the supreme court our country’s safety valve. When everything else fails, the court is there to protect the constitution and protect our civil rights. But today, the most important safety valve is the US Senate, specifically those senators with the conviction to fight for the legitimacy of the supreme court.
Judge Gorsuch might be qualified. He might be a fine judge. But the vacancy on the supreme court does not belong to him.
When President Trump took office, he had three options for filling the vacancy. He could have renominated Judge Garland, rectifying the wrong committed by the Republican party last year. He could have worked with both parties to nominate a consensus candidate, at least recognizing the need to reaffirm the legitimacy of the court by not validating the Republicans’ coup. Or he could do what he did – nominate a partisan judge, completely validating the Republicans’ coup and locking it in as a precedent.
Preventing this precedent and its resulting slippery slope now falls to the Senate. Democratic and independent senators, and any Republicans who still care about the legitimacy of the supreme court, must filibuster Gorsuch’s nomination.
They must demand that Judge Garland be renominated, or at a minimum, that a consensus candidate be selected with input from both parties – a nominee that will restore confidence in our nomination process, our judicial branch and our system of checks and balances.
Merely delaying Gorsuch’s hearing until after an investigation into Russia’s involvement is completed is not enough. His nomination represents a completely separate threat to our country from Trump’s troubling ties to Russia. The Republicans’ judicial coup spat in the face of our constitution, and a nomination that locks that in as a precedent cannot be accepted under any circumstances.
It is not hypocritical to try to right this wrong. It would be unconstitutional not to. The Senate, specifically Senate Democrats and independents, and any Republicans who care about our constitution, must do everything in their power to block Gorsuch’s nomination and demand the legitimacy of our supreme court be restored through the nomination of a consensus candidate.
Russ Feingold was a 16-year member of the US Senate judiciary committee