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

The Chevron Decision, the Regulatory State and "Consent of the Governed"

Not just a line from our founding document; a fact.

by Gaius Publius

Bottom line first — Having justices like Neil Gorsuch on the Supreme Court is part of the attempt by Trump, Bannon, the Koch Bros and all Ryanist Republicans to dismantle the regulatory state. Dismantle — not undercut or chip away at. Tear down, starting at its base. Imagine what that will do. Such an attempt, if it succeeds, could rend the last shred of fabric holding the nation together as a nation.

The attempt to rip that fabric in two is closer to success, on many fronts, than most imagine. This is about one of those fronts, the constitutional authority of the Executive Branch to issue regulations.

The U.S. Regulatory State

The modern U.S. regulatory state is that part of the government, housed in Executive Branch agencies like the FCC, the FAA, the FDA, and the EPA, that regulate in the public interest how businesses must conduct themselves.

The public by and large approves of regulations. Who wants to be killed by spoiled meat, or die in a plane crash because the FAA was privatized, made more "efficient," and turned into a revenue stream for investors?

On the other hand, businesses by and large hate regulations. It's the regulatory state that prevents even more people from dying in cars like the Ford Pinto or the Chevy Cobalt because the company did a cost-benefit analysis and found that killing passengers was economically preferable to making safer cars. It's the regulatory state, in other words, that stands in the way of increasing corporate profit at the public expense.

The regulatory state can be undermined in two ways. It can be captured and dismantled from within, under-funded and staffed with people who ignore or pervert its legal mandates. Or it can simply be made illegal, by overturning the Supreme Court decision that makes it legal in the first place. We've seen many instances of the first way, starting with Ronald Reagan's perversion of the regulatory regime. We're about to witness the second.

"Chevron Deference" and Executive Branch Regulations

The modern regulatory state rests on the Reagan era Supreme Court ruling in Chevron v. National Resources Defense Council. The Chevron decision established the principle that, quoting the New York Times, "the E.P.A. (and any agency) could determine the meaning of an ambiguous term in the law. The rule came to be known as Chevron deference: When Congress uses ambiguous language in a statute, courts must defer to an agency’s reasonable interpretation of what the words mean [emphasis added]."

In essence, the Chevron deference principle allows agencies to interpret regulatory laws in any reasonable way they wish and gives legal deference to those interpretations. Note that this can work both for and against progressive principles. The original Chevron case was a challenge to Reagan's EPA, led at the time by Ann Gorsuch Burford, Neil Gorsuch's mother. The agency wanted to loosen restrictions on pollution from power plants. In siding with the EPA the Court established the deference principle and handed a victory to polluters. The ruling was a unanimous 6-0 decision (with three justices not taking part). Antonin Scalia favored the Chevron ruling.

Chevron is also "one of the most frequently cited cases in the legal canon." From the standpoint of judicial precedence, frequent citation confers authority.

The 1935 Schechter Poultry Decision and the "Nondelegation Doctrine"

The right of the Executive Branch to engage in regulation at all has rarely been challenged; note that Chevron turned on the right to interpret congressional language, not the right of regulation itself. Congress, of course, has the right to regulate business activity, but starting in the Roosevelt era, Congress delegated that authority to the Executive Branch through legislation.

Two Supreme Court challenges to the right of Congress to delegate regulation occurred early in the Roosevelt era, one of them being Schechter Poultry Corp. v. the United States. Both succeeded, but unlike Chevron, neither decision has ever been cited, and for the next 80 years, from that time until now, both have been ignored. Just as citation confers authority, lack of citation diminishes it. Almost from the time they were issued, these decisions, including Schechter Poultry, have been recognized as a "legal dead end."

The discrepancy between these two Supreme Court decisions — Chevron and Schechter Poultry — is obvious. Schechter Poultry, a never-cited decision, denies Congress the right to delegate regulatory authority. The Chevron decision, widely cited, assumes the opposite. For 80 years the federal government has acted as though Schechter Poultry was wrongly decided, and in 1984, Chevron, by implication, affirmed that assumption.

Emily Bazelon and Eric Posner detail the interesting history around these intertwined decisions (my emphasis):

The 80 years of law that are at stake began with the New Deal. President Franklin D. Roosevelt believed that the Great Depression was caused in part by ruinous competition among companies. In 1933, Congress passed the National Industrial Recovery Act [NIRA], which allowed the president to approve “fair competition” standards for different trades and industries. The next year, Roosevelt approved a code for the poultry industry, which, among other things, set a minimum wage and maximum hours for workers, and hygiene requirements for slaughterhouses. Such basic workplace protections and constraints on the free market are now taken for granted.

But in 1935, after a New York City slaughterhouse operator was convicted of violating the poultry code, the Supreme Court called into question the whole approach of the New Deal, by holding that the N.I.R.A. was an “unconstitutional delegation by Congress of a legislative power.” Only Congress can create rules like the poultry code, the justices said. Because Congress did not define “fair competition,” leaving the rule-making to the president, the N.I.R.A. violated the Constitution’s separation of powers.

The court’s ruling in Schechter Poultry Corp. v. the United States, along with another case decided the same year, are the only instances in which the Supreme Court has ever struck down a federal statute based on this rationale, known as the “nondelegation doctrine.” [But] Schechter Poultry’s stand against executive-branch rule-making proved to be a legal dead end, and for good reason. As the court has recognized over and over, before and since 1935, Congress is a cumbersome body that moves slowly in the best of times, while the economy is an incredibly dynamic system. For the sake of business as well as labor, the updating of regulations can’t wait for Congress to give highly specific and detailed directions.

[...]

The system worked well enough for decades, but questions arose when Ronald Reagan came to power promising to deregulate. His E.P.A. [under Neil Gorsuch's mother] sought to weaken a rule, issued by the Carter administration, which called for regulating “stationary sources” of air pollution — a broad wording that is open to interpretation. When President Reagan’s E.P.A. narrowed the definition of what counted as a “stationary source” to allow plants to emit more pollutants, an environmental group challenged the agency. The Supreme Court held in 1984 in Chevron v. Natural Resources Defense Council that the E.P.A. (and any agency) could determine the meaning of an ambiguous term in the law. The rule came to be known as Chevron deference: When Congress uses ambiguous language in a statute, courts must defer to an agency’s reasonable interpretation of what the words mean.

All of this means one thing. Any Court decision that overturns Chevron and leaves Schechter Poultry in place affirms Congress as the only body with the authority to issue regulations affecting business activity.

The effect would be sweeping and immediate. Overturning Chevron means entirely deconstructing the modern regulatory state. It means returning the country, from a regulatory standpoint, to before the New Deal and deny legitimacy to the entirety of Executive Branch regulatory mechanisms.

Needless to say, business leaders in both parties want that deconstruction very very much, and they're working hard to get it.

Neil Gorsuch and the Chevron Decision

Of his many faults, from a judicial standpoints (others are mentioned here), Neil Gorsuch's interest in overturning Chevron is perhaps the most dangerous. The Times again:

Last year, in a concurring opinion in an immigration case called Gutierrez-Brizuela v. Lynch, he attacked Chevron deference, writing that the rule “certainly seems to have added prodigious new powers to an already titanic administrative state.” Remarkably, Judge Gorsuch argued that Chevron — one of the most frequently cited cases in the legal canon — is illegitimate in part because it is out of step with (you guessed it) Schechter Poultry. Never mind that the Supreme Court hasn’t since relied on its 1935 attempt to scuttle the New Deal. Nonetheless, Judge Gorsuch wrote that in light of Schechter Poultry, “you might ask how is it that Chevron — a rule that invests agencies with pretty unfettered power to regulate a lot more than chicken — can evade the chopping block.”

Gorsuch is not alone in wanting to overturn Chevron. Unlike the late Antonin Scalia, Clarence Thomas is openly opposed to Chevron. Three other conservative justices have also indicated their willingness to revisit Chevron. In a recent decision involving regulation by the FCC, one which specifically referenced the Chevron decision, Chief Justice Roberts, joined by Alito and Kennedy, wrote this (my emphasis):

My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. Courts defer to an agency's interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.

In other words, in the view of these three justices, Schechter Poultry's "nondelegation doctrine" must be revisited by the Court. Should they get their wish, there could be five justices in favor of overturning Chevron and re-establishing Congress as the only regulatory agency in the federal government.

The Court's Bipartisan Deference to Big Business

As many have pointed out, the so-called "liberal" justices are also quite business-friendly. Noam Scheiber at the New York Times, in a piece written before the last election, said this (again my emphasis):

[S]ome argue that the Supreme Court under Chief Justice John G. Roberts Jr. has become perhaps the most business-friendly court in recent history. A 2013 study by Lee Epstein of Washington University in St. Louis, William M. Landes of the University of Chicago Law School and Judge Richard A. Posner of the federal appeals court in Chicago ranked justices according to their rulings in cases involving business. The findings, which Ms. Epstein and Mr. Landes updated through the 2014-15 term for this article, show that six of the 10 most business-friendly justices since 1946 sat on the Supreme Court at the time of Justice Scalia’s death.

President Obama has given little indication that he is likely to reverse this trend. Both of his previous nominees, Sonia Sotomayor and Elena Kagan, have been relative moderates on matters involving business, despite some progressive opinions in specific cases.

The so-called "liberal" justices have concurred in a number of important, but low profile cases. Scheiber again:

Perhaps most indicative of the shift in the legal landscape is the assent of many justices appointed by Democrats.

In some areas, like antitrust, the shift rightward has often been uncontroversial, with many of the liberal justices frequently signing on. The 1997 ruling on resale price ceilings was unanimous, while a 2007 ruling on antitrust immunity was 7-1, with Justice Stephen G. Breyer writing the majority opinion.

“It’s not just the conservatives,” said Richard Brunell, vice president and general counsel of the American Antitrust Institute. “It was Breyer who was leading that charge.”

[...]

Justice Ruth Bader Ginsburg voted with the conservative majority in two rulings in the late 1990s that, according to Mr. Miller, the N.Y.U. professor, “clearly signaled the containment of the class action by the court.”

In 2011, Justice Sotomayor joined the conservative majority in striking down a law that denied companies access to pharmacy records about prescriptions, on the grounds that it violated the companies’ First Amendment rights. The following year, Justices Breyer, Kagan and Sotomayor voted with the conservatives in an arbitration decision.

Many people remember a higher profile case, Kelo v. City of New London, which affirmed the "use of eminent domain to transfer land from one private owner to another private owner to further economic development" — the right of a city, in other words, to condemn private property so another private entity could profit from it. Stevens wrote the majority opinion, joined by Kennedy, Souter, Ginsburg and Breyer.

This whole Court is business-friendly. That doesn't mean the "liberal" justices would vote to uphold Shechter Poultry, but they'd certainly listen.

What's at Stake if Chevron Is Overturned? The "Consent of the Governed"

Which brings us to the heart of this piece, its main point. What will happen if Chevron is overturned? The answer to that question is anyone's guess — the future is often as hard to predict as the past — but we'd certainly land in completely uncharted territory. My own best guess that we'd see the same kind of chaos that would erupt if the ACA were repealed completely — but worse, chaos on steroids — since the consequences of dismantling all Executive Branch regulation would be far more reaching, far more devastating to the lives of all Americans.

Consider these two factors:

• The ultimate powerlessness of the Supreme Court (discussed here)
• The fact that Supreme Court justices are appointed for life

When the rebellion that's brewing hot in America reaches the offices of elected officials, they fear for their careers, and many of them change their votes. We saw that with the voting for the later set of Trump cabinet nominees after town hall protests erupted against Democrats like Sheldon Whitehouse because of his shameful pro-torture vote — the one to approve Mike Pompeo as head of the CIA — and we saw that with suddenly announced Democratic intention to filibuster Neil Gorsuch after rumors of a possible "deal" to let him be confirmed were reported.

The justices of the Supreme Court have no such vulnerability; they're appointed for life. They can be dissuaded from a shameful decision, if they wish to be, by massive public protest, but there's nothing that compels that dissuasion.

Further, unlike a law, which can be un-enacted as soon as it's enacted — immediately undone — I can't imagine any court, much less the Robert Court, undoing a "principled" and closely argued decision in response to public pressure, no matter how bad the decision proves to be. After all, Citizens United is still in place, and will be until the Roberts Court is gone.

If ideologically or politically biased judicial actors are willing to throw the nation into chaos to serve the anti-regulatory agenda of the bipartisan money that, frankly, runs the country, what can stop them if they won't stop themselves?

Which, ironically, brings us to the powerlessness of the Supreme Court. Yes, a pro-money government could comply with a decision that overturns Chevron and begin the process of dismantlement. But if it does, the already angry rebellion in this country will grow even angrier — rebellion on steroids — and we may well approach the point where the pressure on elected officials to ignore the Court completely will bring the nation to a standstill — or to a kind of modern, urban civil war.

At that point we won't be in a constitutional crisis, but one much worse — a crisis in which the government, while constitutionally governed, risks losing the "consent of the governed." The "not my government" feelings that brought us Sanders and Trump in 2016 can only grow stronger. That feeling has an endpoint, and that endpoint is governmental crisis of the worst, most existential kind — a challenge to a government's right to rule at all.

No one wants things to go that far, not even brutal Jeff Sessions, whose determination to wage aggressive war on marijuana and to unshackle the country's worst police forces could spark such a crisis all on its own.

But we're much closer to that point than anyone will admit, just as we're closer to the end of our ability to avoid the climate crisis than anyone in power will say publicly. This anti-regulatory wet dream, pushed hard by the Republican Party and abetted by too many Democrats, could easily push us beyond it.

Are our leaders, the elites who run the place "in our name," willing to risk those consequences? If Chevron is overturned, we will find out.

GP
 

It's Not About Gorsuch, It's About the Democrats

The largest political bloc in the United States, "radical independents" (discussion here; click to enlarge).

by Gaius Publius

Update: Various news outlets are reporting that because Chris Coons now says he'll support the filibuster, the Democrats have 41 votes and can block the nomination, at least until filibuster rules are changed. The Hill:

Sen. Chris Coons (D-Del.) announced on Monday that he will oppose President Trump's pick on a procedural vote where he will need the support of eight Democrats to cross a 60-vote threshold to end debate on Gorsuch. Coons is the 41st Democrat to back the filibuster.

“Throughout this process, I have kept an open mind. … I have decided that I will not support Judge Grouch's nomination in the Judiciary Committee meeting today," Coons said.

"I am not ready to end debate on this issue. So I will be voting against cloture," Coons said, absent a deal to avoid the nuclear option. [emphasis added]

The Hill adds, "Unless one of the 41 Democrats changes their vote, the filibuster of Gorsuch will be sustained in a vote later this week." Note the qualification (bolded) next to the Coons quote. That's the writer's voice, but it reads like a paraphrase from Coons. From this, it seems likely they're still negotiating to "preserve the filibuster," as the Democrats might put it. We won't know until the votes are cast how things actually do or did play out.

Bottom line first — Democrats are in luck. They now have a fourth opportunity to make a new first impression on voters — especially those in Rust Belt and economically suffering states — yet another opportunity to bring disaffected voters back into the fold in 2018 and 2020.

The first attempt was the nomination of Hillary Clinton in an obvious, 2008-style "change election" year, despite the fact that an actual "change" candidate, Bernie Sanders, was an option they could have chosen. Clinton ran as "Obama's third term"; she won where Democrats and the economy were strongest — the coastal states of California and New York, for example — and she lost where Democrats used to be strong but the economy was terrible — Michigan and Wisconsin, for example, which she also lost in the primary to Bernie Sanders, a telling sign.

The second attempt was, in the aggregate, the numerous, terrible votes on the numerous, terrible Trump nominees — like torture-loving Mike Pompeo as director of the CIA, who passed the Senate 66-32-2; utterly unqualified Nikki Haley for UN Ambassador, who passed 96-4; anti-public school evangelist Betsy DeVos for Education Secretary, who passed her cloture vote 52-48 before being confirmed on a 50-50 vote; or perhaps most significantly, Exxon CEO Rex Tillerson for Secretary of State, who passed the Senate 56-43-1. Mark Warner and Angus King were among the Democrats voted for Tillerson; Chris Coons didn't vote.

The third attempt was was the proxy battle between the Obama forces, who wanted their man, Tom Perez, to be named DNC chair ahead of Sanders-supporter Keith Ellison. Perez won, with Obama, among others, actively whipping for him (our write-up of that battle is here).

Now comes the highly pro-corporate, pro-religious-rights nominee Neil Gorsuch to fill the vacant Supreme Court justice seat. As you will read below, according to Mitch McConnell, he's going to be nominated one way or the other — with the filibuster in place or with it removed.

The only real question is about the Democrats. What will they do — permit enough of their members to "preserve the filibuster" (until the next time Republicans threaten it) by voting the interests of their donors and passing Gorsuch with Democratic support, or show some Party spine in defeat?

And the only real issues at stake are the 2018 and 2020 elections. Will the Democratic Party, in the aggregate, begin to look like a party the largest voting bloc in the country — "radical" (pro-change) independents — can support? Or will they continue to look like the party of only the comfortably well off?

We're about to find out.

The Gorsuch Nomination — All You Need to Know

As of the latest reports, on Friday, April 7, just prior to a two-week recess, the full Senate will take up the nomination of Neil Gorsuch for justice of the Supreme Court, filling the vacancy left by the death, more than a year ago, of Antonin Scalia on February 13, 2016. (As anyone following this story knows, then-President Barack Obama had shortly thereafter nominated Merrick Garland for the seat, but in an unprecedented move, the Senate under Mitch McConnell refused even to hold hearings, in a apparent — or obvious — attempt to hold the nomination for a potential Republican president after the November 2016 election.)

Because of the makeup of the current Senate — 52 Republicans, 46 Democrats, 2 Independents (Bernie Sanders and the "centrist" Angus King) — Republican have enough votes to confirm Gorsuch (51 votes needed), but not enough to break a filibuster on the vote to close debate and proceed to a vote to confirm (60 votes needed).

This means that the Republicans, if they vote as a bloc, need eight Democrats/Independents to vote with them to close debate (the so-called "cloture" vote).

What to watch for — The cloture vote will determine whether Gorsuch will be confirmed (unless, as noted below, the Republicans vote later to kill the filibuster rule for SC nominees). Thus, any Democrat who votes Yes on cloture but No on Gorsuch is a hypocrite — is merely pretending to be opposed after helping to settle the matter the other way.

That's true of almost all Democrats when it comes to cloture votes, by the way. A vote to close debate, when a bill or nomination could be stopped, followed by a "principled" vote against a bill or nomination means the vote to oppose is a "show vote" only.

The Democratic "Deal" and the Democratic "Filibuster"

In response to the possibility of a Democratic filibuster of Gorsuch, McConnell has threatened a so-called "nuclear option" — that the Senate would change the rules if a filibuster succeeds in a way that would remove the 60-vote threshold for cloture votes on Supreme Court nomination.

Most recently, we find this:

President Donald Trump's Supreme Court pick, Neil Gorsuch, will be confirmed this week one way or the other, Senate Majority Leader Mitch McConnell said on Sunday, suggesting he'll trigger the so-called nuclear option if Democrats attempt to filibuster Gorsuch.

"Judge Gorsuch is going to be confirmed," McConnell said on "Fox News Sunday." "The way in which that occurs is in the hands of the Democratic minority."

McConnell did not say directly that he would trigger the nuclear option, in which the chamber's rules would be changed to allow the Senate to cut off filibusters on Supreme Court nominations with a simple majority, instead of the current 60-vote threshold. But he said the week "will end with [Gorsuch's] confirmation" whether or not Democrats attempt to filibuster him.

Democrats say that if the filibuster remains in place, they have the votes to torpedo Gorsuch’s nomination.

“It’s highly, highly unlikely that he’ll get to 60,” Senate Minority Leader Chuck Schumer said on NBC’s “Meet the Press.”

As the Gorsuch nomination moved through the Republican-controlled Senate, news leaked that some Democratic senators were considering offering a deal to Republicans — "we'll vote for Gorsuch if you don't eliminate the filibuster for the next Supreme Court nominee.

Since first hearing about the threat to the filibuster, "some" Democrats were said to be considering a deal that would preserve the filibuster (until it was next threatened, it must be said) in exchange for Democratic votes for Gorsuch. The uproar among the public against that was immediate.

In apparent response, Senate Democratic leader Chuck Schumer promised a filibuster — meaning, he announced his own intention to vote no on Gorsuch, and he "asked" other Democrats to do the same. (Those details are here: "Senate Democrats Will Filibuster Gorsuch...Maybe".)

The Decision for Democrats: Well-Paid Minority or "Party of the People"? 

Keep in mind these things:

• The Democrats need millionaire, billionaire and corporate money to stay "in business," since they've rejected Bernie Sanders' fundraising model.
   
• Big money and pro-corporate forces really really want a strong pro-corporate majority back on the Roberts Supreme Court.
   
• Gorsuch will likely be confirmed regardless of what the Democrats do.
   
• If Democrats help break the filibuster, Republicans will claim the confirmation was "bipartisan," and corporate Democrats like Schumer can go into private donor meetings and claim his party helped "deliver."

So what the Democratic Party vote on Gorsuch comes down to is a public show of support for one of two constituencies — either the public and their interests, or corporate and big money donors and their interests. The public is watching — which puts Democratic Party prospects at risk; and the donors are watching — which puts Democratic Party funding at risk.

Which leads straight into the Gorsuch vote on April 7. What will the Democrats do?

The Gorsuch Whip List

According to The Hill, here's where we stand with Gorsuch.

    ▪ Three votes to break the filibuster and approve the nomination — Joe Donnelly (IN), Joe Manchin (WV), Heidi Heitkamp (ND). (Update: Michael Bennet will vote to end the filibuster.)

    ▪ 38 votes to block the nomination, including the surprising Claire McCaskill (MO), but perhaps not including Richard Blumenthal (see below). Most of these say they will also support the filibuster, but not all.

    ▪ Five votes "undecided" in the vote to approve the nomination — Michael Bennet (CO), Chris Coons (DE), Angus King (Maine), Jon Tester (VT), Mark Warner (VA). Tester was in Senate Democratic leadership; he's the outgoing chair of the DSCC. Mark Warner is in leadership now and a Schumer ally. This may indicate how strongly (or weakly) Schumer is whipping against Gorsuch. Watch Bennet, Coons and King, for example.

CNN's count adds Richard Blumenthal (CT) as undecided in approving Gorsuch and includes Ben Cardin (MD) and Patrick Leahy (VT) as undecided in supporting the filibuster. (Yes, Leahy, who was accommodating to so many Bush II lower court appointees.)

    ▪ Two votes "unclear" — Dianne Feinstein (CA), Bob Menendez (NJ). "Unclear" may mean "negotiating for favors" if the vote is close and one of the two sides can give them something they want. (CNN has Feinstein supporting the filibuster and also opposed to the nomination.)

If you're counting, the three firm yes votes and the five, six or seven undecides alone could break the filibuster.

The Hill, of course, is maintaining the pretense that Democrats in red states can't win without acting like Republicans. Note that Trump did win in red states by not acting like a Republican. Trump won, if you've forgotten, by acting like ... Bernie Sanders.

A New First Impression, or a Permanent, Well-Paid Minority?

Remember, if the Democrats don't manage one of the days to make a new first impression on voters, they'll be a permanent electoral minority, albeit very well paid for their efforts. "Permanent" means that their minority will last until one of these nearly inevitable events occur...

• An economic revolt against the ruling elite far angrier than we saw in 2008 and 20016, or
• A widespread, panicky recognition that we're really really screwed on climate 

...both of which will make the country nearly ungovernable and elections, frankly, moot.

And from an independent voter's perspective, if Democrats don't care if they are always in the minority, regardless of their words, why vote for them? It's a vicious cycle, downwardly spiraling. 

Will a successful cloture vote slow the flow of big-donor money to the Democratic Party? If not, they can filibuster freely, knowing nomination is secure in any case.

Or will a failure to block the nomination be enough to show both the donors and the public that Democratic Party hearts are "in the right place" after all — even if those two "right places" are simultaneously opposite to each other?

What will Democrats do? I can't wait to find out.

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Neil Gorsuch-- Enemy Of The People... Literally

Even my twitter polls don't usually result in such unanimity. But let's not kind ourselves, Donald Trump isn't fit to appoint a justice to the Supreme Court. I almost feel sorry for Gorsuch. Almost. But not quite... because I don't feel sorry for corporate whores who seek to make the lives of ordinary American families worse. And that, after all, is exactly what Neil Gorsuch is.

Yesterday, the country was more focused on the drama of the House Intelligence Committee questioning FBI Director Comey and the fireworks that ensued, but yesterday was also the first day of hearings into the suitability of Gorsuch to be confirmed for a lifetime appointment by Donald Trump to the Supreme Court.

Judiciary Committee Chairman Chuck Grassley began the hearings by laying out a schedule that would have the committee vote on the nomination in two weeks. Democrats, still fuming that the Senate Republicans refused to even consider the nomination of Merrick Garland, see no reasons to rubber-stamp this controversial nomination the way extremists like Ted Cruz is demanding that they do.

Jeff Merkley (D-OR), the first senator to endorse Bernie Sanders, was also first Senator to stand up and commit to opposing Gorsuch, explaining that "the Republicans stole this seat, which they clearly did. Merkley said he is still eager to hear Gorsuch answer some tough questions:

• Trump promised to nominate someone who opposed abortion. Would you overturn Roe v. Wade?
• Is money speech? Can Congress regulate campaign fundraising at all?
• Do Americans have a right to health care? What about clean air and water? Or education?
• Do people have a right to equal protection under our law and protection from discrimination, including visitors like immigrants, Muslims, and LGBT Americans?

The most compelling line of questioning yesterday came from former Rhode Island Attorney General, Sheldon Whitehouse, whose case against Gorsuch is essentially that "a conservative court," as Matt Stoller put it, "a corrupt cog in a political machine." In it's report on the hearings, the NY Times writers were struck with Whitehouse's "blistering attack on the United States Supreme Court led by Chief Justice John G. Roberts Jr., listing more than a dozen decisions in which the court had voted 5 to 4 to limit voting rights, increase the role of money in politics and favor business interests. In each, he said, the five Republican appointees were in the majority. It is true the Roberts court has been closely divided along partisan lines. Several studies have also showed that the Roberts court tends to favor business interests. If Judge Gorsuch fills the seat left vacant by Justice Scalia’s death last year, he will return the court to a familiar dynamic, with a five-member majority of conservative justices, all appointed by Republican presidents, and a four-member bloc of liberal justices, all appointed by Democratic presidents."

Gorsuch looks normal, both physically and on paper, qualified even. But he's a monster in normal people clothing, who has a destructive agenda. Would Trump-- I mean Bannon and Pence, of course-- have picked him under any other circumstance? Overturning Roe v Wade, dragging LGBT equality back into the 1950s and pushing Bannon's (and Mercer's) favorite project forward: deconstructed the administrative state, i.e., an agenda for the law of the jungle with no EPA, no FEC, no FCC, no CFPB, no effective regulatory agencies of any kind. Anyone voting in committee to move Gorsuch's nomination towards a vote will be embracing exactly that. Matt Stoller was awed by how forthright in his critique Whitehouse was yesterday. "There’s been a lot of bullshit peddled by the press and by insiders," he wrote, "that Neil Gorsuch can’t be beaten, that Democrats don’t have a message. He’s just so qualified, say the American Bar Association, Obama hack Neil Katyal and [Gorsuch's] former clerks. Essentially this is all coming from BigLaw firms. BigLaw firms--  both on the Democratic and Republican sides--  love a court that rules for their big business clients. He’s so qualified, they argue. Gorsuch is polite, rarely late, and has many leather bound books."

Well Democratic Senator Sheldon Whitehouse, in his opening statement at the Gorsuch nominating hearings, isn’t having it. Gorsuch, he said, will fight for big corporations versus actual ‘humans’ in every arena possible.

Whitehouse eviscerated Gorsuch as a payoff to a big conservative political machine. The special interests who financed the campaign to put Gorsuch on the court, he said, “obviously think that you will be worth their money”. Beyond that, he points out, John Roberts sat before the Senate Judiciary Committee and lied that he would just be an unbiased umpire calling balls and strikes. Roberts then went on the court and ruled for big business in every case that came before the court which involved big business. “Once burned, twice shy,” said Whitehouse. Gorsuch will join a court that ruled for big business in everything from class actions to labor to jury systems to voting rights. Whitehouse listed a litany of cases and their impacts, with this one as a particular kicker, “Help insulate investment bankers against fraud claims? Why not?”

The special interests that financed this big business takeover of the court is not principled, said Whitehouse, it isn’t intellectual, it is simply a “delivery service” for big business. Gorsuch is highly qualified, Whitehouse noted. But fundamentally Gorsuch is a payoff to the special interest groups that will profit from his rulings.

It’s important to note here that Whitehouse is making a broader claim about the court. His point isn’t just that Gorsuch should be rejected, but that Democrats should have no respect for the legitimacy of the court so long as the court serves a role as a cog in a corrupt big business machine. He’s pointing to a long-term strategy, regardless of whether Gorsuch wins. The Democrats are going to try and strip the court of the powers that it no longer deserves, because the routine bad faith big business friendly rulings that eviscerate our democratic traditions. The court itself has set itself up for this through decades of malevolent ruling to help big business. The American public is losing faith in its rulings, and that faith is in reality the only real power the court has. Most elite lawyers won’t say this, because they don’t want to anger the establishment they depend on for social, political, and financial currency. But they all know it.

Whitehouse is a very smart lawyer. It is a BIG deal to have an elite credentialed legal thinker like Whitehouse saying what we all know, which is that the Supreme Court is at this point an entirely political and anti-democratic chokepoint meant to sustain Republican and big business dominance of American culture.

Now that’s a populist message.

The Essence Of A Closet Case Is The Learned Ability To Lie Without Effort-- Miss McConnell And Neil Gorsuch

Arguably the most hypocritical man to have ever served as Senate Majority Leader in our lifetimes is Kentucky closet queen Mitch ("Miss") McConnell, the architect of the dogged Republican decision to prevent-- for a full year-- the appointment of President Obama's nominee to the Supreme Court from being even considered. On the very day Obama announced the nomination of Merrick Garland, DWT's response was one of profound disappointment. But no one around here is a president entitled to make nominations and McConnell's role in blackballing him was reprehensible. Yesterday-- behind a Politico paywall-- he claimed that the fascist-oriented Neil Gorsuch-- a so-called "judge"-- must get an up-or-down vote and that "Democrats are threatening to hold up a qualified Supreme Court nominee for one reason: to hurt Donald Trump."

McConnell claims Gorsuch is celebrated on both sides of the aisle. That's a lie. Gorsuch is widely recognized as a small-minded partisan hack and he is absolutely reviled by progressives. Unlike Merrick Garland, who was a dull moderate, Gorsuch is a vicious far right ideologue (with a fake smile). I think Bernie spoke for most progressives when he said that "It is imperative that a new justice be prepared to defend the rights of all Americans, not just the wealthy and large corporations. Our next Supreme Court justice must vote to protect American democracy and keep campaigns free of the corrupting influence of big money, treat workers fairly, safeguard liberties for women and minorities, protect religious freedom and to safeguard the privacy rights of citizens." He was describinhg the polar opposite of Neil Gorsuch.

McConnell claimed that because everyone was happy to confirm Gorsuch to the 10th Circuit Court of Appeals, he's fine for the Supreme Court. Somehow the comparison with the admiration conservative Republicans heaped on Merrick Garland was lost on the delusional McConnell. "So why," McConnell lisped, "would Democrats contemplate doing something so radical and out of the mainstream now-- against a superbly qualified judge Democrats didn’t raise objections to before, a man Democrats have praised many times since?" He claims it's "far left groups" who hate Trump. He insists that Senate Democrats "are attempting to paint this nominee as an 'extremist' and are calling for a filibuster before the ink is even dry on his nomination" and repeats the Alt-Fact talking point that "Democrats are having a tough time coming to grips with the election results" and that protesters are "rioting." That isn't rue and that isn't the reason. Gorsuch is the reason. Here's Miss McConnell'shyper-hypocritical case:

I realize that Leader Schumer in particular is under immense pressure from the radical fringes of our politics. But he and his party can’t allow themselves to be led around by the far left.

Senator Schumer recently declared on the Senate floor that he would seek to deny a straight up-or-down vote for Judge Gorsuch because, he claimed, Republicans had “insisted” on similar treatment for President Obama’s nominees.

Only thing is, we hadn’t. The Democratic leader was forced to return to the floor to correct himself. I think we all appreciated Leader Schumer making clear to America that Republicans did not-- not-- insist on supermajority 60-vote thresholds for either of President Obama’s two first-term Supreme Court nominees. We allowed straight up-or-down votes for President Clinton’s nominees too. There’s no reason someone as widely respected on both sides of the aisle like Judge Gorsuch should be treated differently now.

I’ve been consistent all along that the next president-- Democrat or Republican-- should select the next nominee for the Supreme Court. I maintained that view even when many thought that president would be Hillary Clinton. But now the election season is over, and we have a new president who has nominated a superbly qualified candidate to fill that ninth seat.

Democrats now have a choice. They can tear our country apart further, or they can stand up and lead. I invite Leader Schumer and his party, who repeatedly declared how necessary it was to have nine justices on the court, to now follow through on their refrain of “we need nine” by giving this tremendously well-qualified nominee fair consideration and an up-or-down vote.

It's true that Miss McConnell didn't insist on a 60 vote threshold for Garland. There was no need to. He just flat-out declared that the Senate Republicans wouldn't even consider the nomination and would hold no hearings, let alone a vote. McConnell is a practiced liar-- after decades of pretending to be a heterosexual while soliciting sex from young men in Louisville's "Pickle Park." He's brought his alt-facts universe to his duties in the U.S. Senate.

Last night Miss used an archaic 19th Century rule rule to silence Elizabeth Warren and prevent her from reading into the record a letter from Coretta Scott King about Jeff Sessions' utter unsuitability, a rule that was put in place by pro-slavery senators to prevent abolitionists from talking about slavery. These were the ideological forebearers of Mitch McConnell and Jefferson Beauregard Sessions III... and so many of today's Republican Party politicians.

The crazy man in Mar-A-Lago seems to have set the tone for the debate on his Supreme Court nominee. Democratic senators are extending him the courtesy of interviews. Jon Tester (D-MT) did it yesterday and said he hadn't made up his mind yet. Schumer met with him today-- far more than Miss McConnell ever did with Garland. Can the senators not question Gorsuch about Trump's recent spate of crackpot tweets undermining the judicial branch? I would think someone will have to ask Gorsuch about impeachment in light of the crazy judicial tweets this weekend.

Is Trump undermining the judiciary for the sake of his drug-addled followers so that when he's eventually, inevitably convicted of something serious they'll be gaslighted enough to back his defiance? Even Pence, speaking on ABC's This Week yesterday, admitted that Judge Robart has the authority to halt Trump's unhinged and unconstitutional Executive Order.

Eventual Gorsuch hearing should be just swell. Aside from the twittery attacks on judges, the senators have to ask him about all the business conflicts, the Pam Bondi bribery case (and the rest of the sordid Trump University saga)... It might even be an opportunity for Trumpanzee supporters to learn something about the way the political system works. But, make no mistake, the hearings will be almost as much about Trumpanzee as they are about Gorsuch, who doesn't appear to be independent enough to stand up to Trump, Pence and Bannon. As the Washington Post pointed out over the weekend, "Gorsuch’s nomination lands at a time when the Supreme Court is likely to be called upon to review what Trump already has shown to be a broad reliance on executive power."

Turning The Supreme Court Into A Bastion Of Fascism

PPP released new polling this morning. A majority of Americans wish Obama was still president. And where last week, everyone was stunned that 35% of the country were already hoping Trump would be impeached, in just 7 days, that number has already increased to 40%! Only 43% of Americans are glad Trump is president. (The polling didn't ask about it but evidence is that Trump's strongest support comes from the counties with the heaviest prescription drug abuse and opioid addiction. It could be a coincidence... sure it could.)

Why so much unhappiness with Trump? Voters think basically everything he's doing is wrong:

• Overall voters are pretty evenly split on Trump's executive order on immigration from last week, with 47% supporting it to 49% who are opposed. But when you get beyond the overall package, the pieces of the executive order become more clearly unpopular. 52% of voters think that the order was intended to be a Muslim ban, to only 41% who don't think that was the intent. And the idea of a Muslim ban is extremely unpopular with the American people- only 26% are in favor of it, to 65% who are against it. When it comes to barring people from certain countries from entering the United States, even when those people have already secured a Visa, just 39% of voters are supportive to 53% who are against it. And just 43% of voters support the United States indefinitely suspending accepting Syrian refugees, with 48% opposed to that. Finally voters see a basic competence issue with Trump's handling of the executive order- only 39% of voters think it was well executed, to 55% who believe it was poorly executed.

• It hasn't taken long for voters to develop a pretty dim view of Trump advisor Steve Bannon, and become wary of the extent to which he's being given power within the administration. Only 19% of voters see Bannon favorably, to 40% who have a negative opinion of him. Only 34% of voters approve of his being given a seat on the principals committee of the National Security Council, to 44% who are opposed to that. What's particularly telling is that only 19% of voters think Bannon belongs in that seat on the National Security Council more than the Chairman of the Joint Chiefs of Staff and the Director of National Intelligence, to 59% who believe those folks are more deserving of that place at the table. Even Trump voters think he's gone too far on that front- by a 40/35 margin they think the more traditional members should have that position rather than Bannon.

• Very few voters go along with Trump when it comes to his voter fraud paranoia. Only 26% of voters think millions of people voted illegally in the 2016 Presidential election, to 55% who believe that's not a real thing. This is another issue where even a significant number of Trump voters become wary of his claim- 47% believe it but 27% don't and another 26% aren't sure. It's been unusual to find things where a majority of Trump's voters don't go along with him.

• Voters continue to be very skeptical of the funding plan for the wall with Mexico. Only 40% of voters are in support of building the wall if American taxpayers have to front the cost for it, to 54% who are opposed. And there's similar opposition when it comes to the 20% tax on items imported to the US from Mexico that the administration floated last week- only 37% of voters support that to 50% who are opposed to it.

• Obamacare continues to become more popular the more talk there is about repealing it. 46% of voters now say they support it to just 41% who are opposed. And only 33% of voters think the best course of action is for Congress to repeal the Affordable Care Act and start over, to 62% who think it would be better to keep it and fix the parts that need fixing.

Another aspect of Trump's unpopularity is that he's losing all of his fights. In the last week he's gone on the attack on Twitter against John McCain, the Washington Post, the New York Times, and CNN and in each case we find voters siding with Trump's adversary:

• By a 51/37 spread voters say John McCain has more credibility than Trump.
• By a 52/41 spread voters say the Washington Post has more credibility than Trump.
•By a 51/42 spread voters say the New York Times has more credibility than Trump.
•By a 50/42 spread voters say CNN has more credibility than Trump.

...Only 13% of voters approve of the job Congress is doing, to 68% who disapprove. Paul Ryan has a 35/43 approval rating, and Mitch McConnell's is 17/55. Democrats lead the generic Congressional ballot 45/42.

PPP hasn't had time to poll on Trump's Supreme Court nominee yet. Today Gorsuch was making his rounds in the Senate. He met with Bob Corker (R-TN) and Lindsey Graham (R-SC) just as the news was breaking that he this child of immense privilege who spent his entire life in elite tony prep schools had once started a club called Fascism Forever.

The Daily Mail reported that Gorsuch founded and led a student group called the 'Fascism Forever Club' at his elite high school... to rally against the ‘left-wing tendencies’ of his professors while attending a Jesuit all-boys preparatory high school near Washington D.C." Gorsuch-- which Spell-check insists is spelled "grouch"-- founded the club in his freshman year and remained president through his senior year. Yep, Trump found a life-long kook to nominate to the Court.

And, no, the fascist little piece of shit didn't get any better when he went off to college. Today's New York Daily News reported that he "expressed disdain for protesters in a series of columns published by a Columbia University newspaper-- and one time had to retract a fabricated story he wrote about a student activist." His college writings exposed him as a racist and a corporate whore, attitudes he later took to the bench and were the foundations of his judicial opinions.

Jordan Kushner, a Minnesota resident who attended Columbia with Gorsuch, told The News that the potential Supreme Court justice could be bad for the country.

“Our civil liberties are at danger, and someone of the conservative caliber of Gorsuch certainly increases that danger,” Kushner, 51, said. “I think it’s disturbing but I can’t see Trump appointing anyone who’s better than him. We got what we expected from a Trump appointee.”

Kushner, a civil rights attorney residing in Minneapolis, recalled protesting the Coors Beer Company at a student grocery store while attending Columbia. A large group of students were lamenting the beverage giant for supposedly violating workers’ civil rights while allocating profits to organizations promoting racism and homophobia, Kushner said.

Gorsuch wrote a story about the protest for the conservative-leaning Federalist newspaper, which he co-founded in 1986. The story falsely claimed Kushner damaged property at the grocery store.

“He said I started kicking beer kegs and acting crazy, even though that wasn’t true so he had to do a retraction,” Kushner said, describing himself as being a leftist political activist at the time. “He had that biting thing against me…He did not like protesters.”