Holding Senators Accountable For Bad Votes-- Like Confirming Neil Gorsuch To The Supreme Court

Gorsuch throws a gang sign: "thin the herd"

What do you think-- should senators be considered responsible-- by voters-- for the actions of Supreme Court judges they vote to confirm? I've always thought so. There were 3 Democrats-- Joe Donnelly (D-IN), Heidi Heitkamp (D-ND) and Joe Manchin (D-WV) who voted to confirm Neil Gorsuch and a 4th, Michael Bennet (D-CO) , who voted with the Republicans procedurally to enable the confirmation. Donnelly, Heitkamp and Manchin are all up for reelection next year-- and in states which Trump won by big majorities-- 56.82% to 37.91% in Indiana, 62.96% to 27.23% in North Dakota and 68.50% to 26.43% in West Virginia. The electoral calculus by each senator was that they had more to lose by voting NO than to gain by voting YES, knowing Democrats in their states would be likely to ignore the bad vote for the Gorsuch-- as well, in each case, bad vote after bad vote all year.

And no one can claim they weren't warned about how bad Gorsuch was likely to be on the Court. There wasn't a good government group in the country that wasn't sounding the alarm. Ian Millhiser, the Justice Editor for Think Progress was especially outspoken and especially dire in his predictions. Over the weekend, he wrote an I told you so piece. The carefully choreographed and intentionally deceptive hearings didn't indicate the Gorsuch would likely be the worst justice on the Court-- but you had to be deaf, dumb and blind to have missed that during the process. Today, writes Millhiser, "Gorsuch is disrespectful of precedent and eager to move the law very far, very fast. His agenda is both well-thought out and extraordinarily conservative. When the Court splits into its old factions, with Justice Clarence Thomas staking out a position that no other member of the Court will sign onto, Gorsuch embraces Thomas’ view. Gorsuch spent the last day of the Court’s just-concluded term, moreover, laying out a vision that will make culture warriors bounce with glee. His ascension to the Supreme Court was the culmination of an effort to protect religious conservatives by any means necessary. And, if Gorsuch gets his way, some very basic civil rights will bow to the Christian right."

[Robert] George is probably the nation’s leading anti-LGBTQ scholar. A former chair of the National Organization for Marriage, which tried and failed to halt the spread of marriage equality in the United States, George was cited twice in a dissenting opinion by Justice Samuel Alito, which complained that the so-called Defense of Marriage Act was struck down.

George gushed about the Gorsuch nomination in an op-ed published by the Washington Post. “Gorsuch will be a hard man to depict as a ferocious partisan or an ideological judge,” George wrote of a man who tried to hobble a law protecting disabled children before he was unanimously rebuked by his eight new colleagues.

Yet, in a straightforward admission that George knew what he stood to gain from a Gorsuch confirmation, the professor also wrote that, on “abortion, same-sex marriage, gun control, campaign finance reform and religious freedom,” Gorsuch was likely to vote “pretty much the same way Scalia did.”

Indeed, if Neil Gorsuch gets his way, the hundreds of defiant conservative leaders who signed George’s Manhattan Declaration will be given broad discretion to defy the law by the Supreme Court itself.

Echoing religious conservatives who sought the right to deny birth control coverage to their employees, Gorsuch wrote as a lower court judge in the original Hobby Lobby litigation that “all of us face the problem of complicity,” and “all of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”

Hobby Lobby set off a doctrinal earthquake when it reached the Supreme Court, holding, for the first time, that a religious objection can be wielded to limit the rights of a third party. And now, with Gorsuch occupying a seat on the Supreme Court, the Court is preparing to hear a case that could grant the Christian right a license to engage in straight up discrimination.

Gorsuch, moreover, has already telegraphed how he will vote in this case.

Last Monday was a big day for Neil Gorsuch--  and not a hopeful day for anyone who believes that LGBTQ people are fully human and entitled to the same rights as everyone else. Gorsuch revealed himself as a hardline conservative on marriage equality and called for a broad expansion of Hobby Lobby. And he did so on the very same morning that the Court announced that it would decide whether religion is a license to discriminate.

The marriage equality case involved an Arkansas law providing that a mother’s husband will automatically be listed on a birth certificate as the child’s father, even in many cases where the husband is not the biological father, but that did not afford similar treatment to same-sex couples. Such a rule, a majority of the Supreme Court explained, violates the Court’s holding in Obergefell v. Hodges that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’”

Gorsuch disagreed, pointing to the state’s arguments “that rational reasons exist for a biology based birth registration regime.” Never mind, of course, that Arkansas did not have a “biology based birth registration regime,” as it often listed non-biological parents on birth certificates so long as that parent is a man married to a woman.

The conservative jurist’s use of the word “rational” here is also highly significant, as it offers a window into how Gorsuch views discrimination on the basis of sexual orientation generally. The lowest level of scrutiny the Court applies in constitutional discrimination cases-- the level it typically applies to allegations it views as dubious-- is known as “rational basis,” and it provides that the government is free to do whatever it wants so long as it can articulate a rational reason for doing so.

So when Gorsuch defended Arkansas’s law by pointing to allegedly “rational reasons” for it to exist, he suggested that discrimination based on sexual orientation isn’t something the courts should worry themselves about.

It's another factor that needs to go into calculations for voters when they decide in 17 months whether or not to vote for Donnelly, Heitkamp and Manchin. In Manchin's case, there's also a primary, which, for a progressive, should be a no brainer. There's no chance the progressive Berniecrat running against him, Paula Jean Swearengin, would have ever voted to confirm Gorsuch-- or voted to have confirmed Scott Pruitt as head of the EPA, as Manchin (and Heitkamp) did.

We're stuck with Gorsuch for life-- voters can-- and should-- remove Manchin