Senate Confirmation – Page 2 – immigrationcourtside.com

“NIGHTMARE ON ELM STREET” 🪓🔪 — MALE, PALE WHITE, & FAR RIGHT — The Clown Prince 🤡 & Moscow Mitch 👹 Have Put Together An Extreme Bench That Looks, Thinks, and Acts Nothing Like The Real America — Their Evil Specter 🧛‍♂️🧟‍♀️ Will Haunt Our Justice System For Decades To Come 💣! — Judges Should Have Demonstrated Reputations For Fairness, Scholarship, Courage, & Relevant Experience Successfully Interacting With A Broad Base Of Humanity, Not Just Reliable Right-Wing Voting Records!

The Honorable Shira Scheindlin — The Honorable Shira A. Scheindlin
Retired US District Judge
SDNY
Spector8745, 8/6/13, 8:58 AM, 8C, 3000×4000 (0+0), 50%, ten stop S cur, 1/12 s, R38.4, G30.1, B67.6

https://www.theguardian.com/commentisfree/2020/apr/28/trump-judges-giant-step-backward-america?CMP=Share_iOSApp_Other

Hon. Shira A. Scheindlin writes in The Guardian:

Whether or not he is re-elected, Donald Trump will be revered by conservatives for his judicial appointments. As of March, Trump has appointed 193 judges to the federal bench, with another 39 pending on the floor of the Senate or in the Senate judiciary committee. Those nominations will surely be acted on favorably by the Senate before 20 January 2021, when there may be a new president and a new Senate. There are another 38 district court vacancies awaiting nominations. In one presidential term, Trump may appoint up to 270 federal judges, or 31% of the entire federal judiciary. For perspective, Barack Obama appointed 329 in eight years.

There is no doubt that the Senate majority leader, Mitch McConnell, will confirm Trump’s appointments until the very last day of his term. This is of course the same Senate gatekeeper who infamously blocked Obama’s final supreme court nomination, Merrick Garland, for an entire year – on the ground that in the final year of a presidency, the Senate should await “the will of the people” in the upcoming general election. But that was then. The rules have apparently changed. McConnell will pack the courts with “right-thinking” ideologues who will carry out Trump’s agenda long after he has been subjected to the scorn of historical scrutiny.

We now know a lot about Trump’s judicial appointments. Eighty-five per cent are white and 76% are male. This is a significant step backward. Obama’s judicial appointments were 64% white and 58% male. Today, after more than three years of Trump’s appointments, the federal judiciary is 73% white and 66% male, but it will be even more male and pale by the end of his term. Even more troubling is the average age of the Trump judges. According to Brookings, the median age of Trump’s judicial appointments by the beginning of his fourth year in office is 48.2. By the same time in his presidency, the median age of Obama’s appointees was 57.2. This means that Trump judges will serve, on average, for 10 years more than the Obama judges.

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Statistics only tell part of the story. More important is the impact of these statistics on the critical issues that face the courts now and in the future. Courts should reflect the people they serve. I served as a federal district judge for 22 years. The vast majority of criminal defendants (in non-white-collar cases) were either African American or Hispanic, as were their family members. Plaintiffs in employment discrimination cases were overwhelmingly women, minorities or persons with disabilities. The same was true in actions involving prisoner rights, voting rights, housing discrimination and public benefits. Not all cases involve big corporations and business disputes.

Trump’s court takeover

This series examines the historic pace and nature of Trump’s remaking of the federal courts and the conservative agenda it will usher in on a range of issues from voting rights to climate and from healthcare to criminal justice

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A diverse bench engenders trust and credibility. Many studies have shown that decision-makers reach better decisions when they bring a variety of experiences to their analysis. A 36-year-old lawyer who has never tried a case, has not represented individual clients, and has not spent years facing life’s challenges is not well-positioned to decide on the length of a prison term, the need for access to healthcare, abortion, food stamps, Medicare or housing, or the impact of pollution or discrimination on working people’s quality of life. It is for this reason the American Bar Association’s standing committee on the federal judiciary insists that a candidate for judicial office have at least 12 years of experience practicing law – not talking about it as a speech writer, lobbyist or media star.

When I was appointed to the bench I was 48. I had been a federal prosecutor, a defense lawyer, and had handled many civil cases in trial and appellate courts. That experience was invaluable. I knew both the substance and procedure of federal practice. The same cannot be said of many of Trump’s nominees, whose only qualifications appear to be their consistently rightwing voting records.

Consider the following four Trump judges, all of whom were appointed in their 30s. What they have in common is not their legal experience, but their outspoken support of Trump’s political agenda. All were members of the Federalist Society or other rightwing organizations, clerked for conservative judges, and have written articles or advocated for legal positions that are vastly out of step with most Americans.

Allison Rushing was 36 when she was confirmed to a seat on the fourth circuit court of appeals, 11 years after graduating from law school, and Trump’s youngest nominee to a circuit court judgeship. She clerked for then-circuit judge Neil Gorsuch and for Justice Clarence Thomas. Her law practice during the remaining nine years was limited to representing big corporations at one of the nation’s largest law firms.

Andrew Brasher was 38 when he was confirmed to a seat on the 11th circuit court of appeals, after serving for only nine months on the district court for the middle district of Alabama. In the years just before his appointment he served as Alabama’s solicitor general, often advocating for rightwing causes.

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Justin Walker, best known for his full-throated defense of Brett Kavanaugh (for whom he clerked), was appointed as a district judge in the western district of Kentucky, at 37, just 10 years after graduating law school. He is a protege of Mitch McConnell, who held up debate on a Covid-19 relief bill to attend Walker’s induction ceremony. Less than six months after Walker took the bench, Trump announced that he intended to nominate him for an upcoming vacancy on the DC court of appeals.

Patrick Wyrick was 38 when he was confirmed as a judge for the western district of Oklahoma. Four years after graduating law school he became the solicitor general of Oklahoma. He is a protege of Scott Pruitt, the disgraced former head of the Environmental Protection Agency.

One of these judges could easily end up on the supreme court; two are known to be on the shortlist. All will probably still be on the bench 40 years from now. That alone should make voters think hard about the upcoming presidential election. As the saying goes: elections have consequences.

Shira A Scheindlin served as a United States district judge for the southern district of New York for 22 years. She is the co-chair of the Board of the Lawyers Committee for Civil Rights Under Law and a board member of the American Constitution Society

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I’ve been preaching on “Courtside” for some time now about the serious deterioration of America’s Article III Judiciary in the face of Trump’s tyranny. While there are some notable exceptions among appointees of both parties, even some of the “non-Trump appointees” have done a less than heroic job of standing up for Due Process, fundamental fairness, equal justice for all, and human rights, particularly when it comes to vulnerable migrants and asylum seekers, some children, being abused by a system that just no longer cares.

Witness the clearly unconstitutional and essentially unconscionable abuse and open mockery of the American Justice system, the rule of law, and respect for human dignity going on every day in our broken and dysfunctional U.S. Immigration “Courts” that betray and sometimes mock the most fundamental of American values.

Any Article III Judge personally subjected to the kind of intentional dehumanization (a/k/a/ “Dred Scottification”) and disrespect going on daily in Immigration Court would be outraged! But, that outrage seems to disappear when the grotesque abuses are only being inflicted on “the other.” Since, according to Trump and his cronies, the majority of Americans are “the other” — in some way or another — this abdication of judicial integrity has ominous implications far beyond the “world of immigration” — where those mistreated often get deported so their voices can no longer be heard!

While, yes, the Administration frequently gets bashed by some U.S. District Courts and some Circuits, we’re only getting at the “tip of the iceberg” for a system that is allowed to grind out unfair and substandard results and where far too many are simply railroaded out of the country without fair access to lawyers, Article III judicial review, and even time to prepare their cases or understand what they are required to prove to save their lives.

Emboldened by judicial intransigence and fecklessness, the Administration has now “one-upped” the complicit Article IIIs by simply unilaterally, and without legislation, cutting off access to even the Immigration Courts while the “J.R. Five” nods approval like a bunch of “judicial bobbleheads” gracing Stephen Miller’s mantle.

No, we can’t change life tenure. But, we can elect a President and a Senate majority committed to a diverse Federal Judiciary that will put excellence, due process, equal justice, human rights, and human understanding and empathy before far-right ideology. That’s an important start on fighting back and taking the challenge directly to those now on the bench who are committed to dehumanizing, degrading, and ignoring the rights of those who comprise the real America.

This November, vote like your life depends on it. Because it does!

PWS

04-29-20

ADAM SERWER IN THE ATLANTIC: The Trump/Sessions/Miller White Nationalist Policies: It’s All About Cruelty & Hate!

https://www.theatlantic.com/ideas/archive/2018/10/the-cruelty-is-the-point/572104/

Adam Serwer writes in The Atlantic:

The Museum of African-American History and Culture is in part a catalog of cruelty. Amid all the stories of perseverance, tragedy, and unlikely triumph are the artifacts of inhumanity and barbarism: the child-size slave shackles, the bright red robes of the wizards of the Ku Klux Klan, the recordings of civil-rights protesters being brutalized by police.

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The artifacts that persist in my memory, the way a bright flash does when you close your eyes, are the photographs of lynchings. But it’s not the burned, mutilated bodies that stick with me. It’s the faces of the white men in the crowd. There’s the photo of the lynching of Thomas Shipp and Abram Smith in Indiana in 1930, in which a white man can be seen grinning at the camera as he tenderly holds the hand of his wife or girlfriend. There’s the undated photo from Duluth, Minnesota, in which grinning white men stand next to the mutilated, half-naked bodies of two men lashed to a post in the street—one of the white men is straining to get into the picture, his smile cutting from ear to ear. There’s the photo of a crowd of white men huddled behind the smoldering corpse of a man burned to death; one of them is wearing a smart suit, a fedora hat, and a bright smile.

Their names have mostly been lost to time. But these grinning men were someone’s brother, son, husband, father. They were human beings, people who took immense pleasure in the utter cruelty of torturing others to death—and were so proud of doing so that they posed for photographs with their handiwork, jostling to ensure they caught the eye of the lens, so that the world would know they’d been there. Their cruelty made them feel good, it made them feel proud, it made them feel happy. And it made them feel closer to one another.

The Trump era is such a whirlwind of cruelty that it can be hard to keep track. This week alone, the news broke that the Trump administration was seeking to ethnically cleanse more than 193,000 American children of immigrants whose temporary protected status had been revoked by the administration, that the Department of Homeland Security had lied about creating a database of children that would make it possible to unite them with the families the Trump administration had arbitrarily destroyed, that the White House was considering a blanket ban on visas for Chinese students, and that it would deny visas to the same-sex partners of foreign officials. At a rally in Mississippi, a crowd of Trump supporters cheered as the president mocked Christine Blasey Ford, the psychology professor who has said that Brett Kavanaugh, whom Trump has nominated to a lifetime appointment on the Supreme Court, attempted to rape her when she was a teenager. “Lock her up!” they shouted.Ford testified to the Senate, utilizing her professional expertise to describe the encounter, that one of the parts of the incident she remembered most was Kavanaugh and his friend Mark Judge laughing at her as Kavanaugh fumbled at her clothing. “Indelible in the hippocampus is the laughter,” Ford said, referring to the part of the brain that processes emotion and memory, “the uproarious laughter between the two, and their having fun at my expense.” And then at Tuesday’s rally, the president made his supporters laugh at her.

Further reading: The most striking thing about Trump’s mockery of Christine Blasey Ford

Even those who believe that Ford fabricated her account, or was mistaken in its details, can see that the president’s mocking of her testimony renders all sexual-assault survivors collateral damage. Anyone afraid of coming forward, afraid that she would not be believed, can now look to the president to see her fears realized. Once malice is embraced as a virtue, it is impossible to contain.

The cruelty of the Trump administration’s policies, and the ritual rhetorical flaying of his targets before his supporters, are intimately connected. As Lili Loofbourow wrote of the Kavanaugh incident in Slate, adolescent male cruelty toward women is a bonding mechanism, a vehicle for intimacy through contempt. The white men in the lynching photos are smiling not merely because of what they have done, but because they have done it together.

We can hear the spectacle of cruel laughter throughout the Trump era. There were the border-patrol agents cracking up at the crying immigrant childrenseparated from their families, and the Trump adviser who delighted white supremacists when he mocked a child with Down syndrome who was separated from her mother. There were the police who laughed uproariously when the president encouraged them to abuse suspects, and the Fox News hosts mocking a survivor of the Pulse Nightclub massacre (and in the process inundating him with threats), the survivors of sexual assault protesting to Senator Jeff Flake, the women who said the president had sexually assaulted them, and the teen survivors of the Parkland school shooting. There was the president mocking Puerto Rican accents shortly after thousands were killed and tens of thousands displaced by Hurricane Maria, the black athletes protesting unjustified killings by the police, the women of the #MeToomovement who have come forward with stories of sexual abuse, and the disabled reporter whose crime was reporting on Trump truthfully. It is not just that the perpetrators of this cruelty enjoy it; it is that they enjoy it with one another. Their shared laughter at the suffering of others is an adhesive that binds them to one another, and to Trump.

Read Adam Serwer on why the white nationalists are winning

Taking joy in that suffering is more human than most would like to admit. Somewhere on the wide spectrum between adolescent teasing and the smiling white men in the lynching photographs are the Trump supporters whose community is built by rejoicing in the anguish of those they see as unlike them, who have found in their shared cruelty an answer to the loneliness and atomization of modern life.

The laughter undergirds the daily spectacle of insincerity, as the president and his aides pledge fealty to bedrock democratic principles they have no intention of respecting. The president who demanded the execution of five black and Latino teenagers for a crime they didn’t commit decrying “false accusations,” when his Supreme Court nominee stands accused; his supporters who fancy themselves champions of free speech meet references to Hillary Clinton or a woman whose only crime was coming forward to offer her own story of abuse with screams of “Lock her up!” The political movement that elected a president who wanted to ban immigration by adherents of an entire religion, who encourages police to brutalize suspects, and who has destroyed thousands of immigrant families for violations of the law less serious than those of which he and his coterie stand accused, now laments the state of due process.

This isn’t incoherent. It reflects a clear principle: Only the president and his allies, his supporters, and their anointed are entitled to the rights and protections of the law, and if necessary, immunity from it. The rest of us are entitled only to cruelty, by their whim. This is how the powerful have ever kept the powerless divided and in their place, and enriched themselves in the process.

Further reading: I know Brett Kavanaugh, but I wouldn’t confirm him

A blockbuster New York Times investigation on Tuesday reported that President Trump’s wealth was largely inherited through fraudulent schemes, that he became a millionaire while still a child, and that his fortune persists in spite of his fumbling entrepreneurship, not because of it. The stories are not unconnected. The president and his advisers have sought to enrich themselves at taxpayer expense; they have attempted to corrupt federal law-enforcement agencies to protect themselves and their cohorts, and they have exploited the nation’s darkest impulses in the pursuit of profit. But their ability to get away with this fraud is tied to cruelty.

Trump’s only true skill is the con; his only fundamental belief is that the United States is the birthright of straight, white, Christian men, and his only real, authentic pleasure is in cruelty. It is that cruelty, and the delight it brings them, that binds his most ardent supporters to him, in shared scorn for those they hate and fear: immigrants, black voters, feminists, and treasonous white men who empathize with any of those who would steal their birthright. The president’s ability to execute that cruelty through word and deed makes them euphoric. It makes them feel good, it makes them feel proud, it makes them feel happy, it makes them feel united. And as long as he makes them feel that way, they will let him get away with anything, no matter what it costs them.

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I could see it in the mindless clapping, revolting laughter, and sickening glee in the eyes of the ugly, overwhelmingly White crowd (many of them women, although a few of the women didn’t seem amused) behind Trump as he denigrated and mocked Christine Blasey Ford this week.

Also in the angry, distorted snarl of Sen. Lindsey Graham as he absurdly called the Kavanaugh hearings “the most unethical” performance (LG, my man, where were you when Mitch, you, and your colleagues totally stiffed a much better qualified Obama appointment, , without even giving him the courtesy of a hearing?).

Also in the incredibly arrogant, partisan, rude, condescending, and openly misogynistic way that Kavanaugh treated Senator Amy Klobuchar’s totally reasonable inquiry. Would Senator Susan Collins still have voted for “BKavs” if he had treated her that way? I doubt it! But, I guess her women colleagues don’t matter. And, it appears that “Chairman Chuckie” Grassley doesn’t really need or want any GOP women on his “Old Boys Club” (a/k/a Senate Judiciary Committee.) Only Democrat women can hack the stress and workload of serving on a daily basis with the GOP misogynists.

What do you call a party whose “base” glories in the pain and suffering of others? The 21st Century GOP!

It’s an existential threat to the future of our country! If decent folks don’t start using the ballot box to remove the GOP from power at every level, it might be too late for the majority of us to take our country back from the misguided minority who have taken power! Get out the vote in November!

PWS

10-07-18

James Hohmann In WashPost: How Trump Is Winning The War Even While Losing Some Key Battles — “Deconstruction Of The Administrative State” Moving At Full Throttle With No End In Sight! PLUS EXTRA BONUS: My Mini-Essay “On Gorsuch, Deference, & The Administrative State!”

https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2017/03/27/daily-202-how-trump-s-presidency-is-succeeding/58d88409e9b69b72b2551039/?utm_term=.dbeab923d833

Hohmann writes:

“– Liberals mock Trump as ineffective at their own peril. Yes, it’s easy to joke about how Trump said during the campaign that he’d win so much people would get tired of winning. Both of his travel bans have been blocked – for now. An active FBI investigation into his associates is a big gray cloud over the White House. The president himself falsely accused his predecessor of wiretapping him. His first national security adviser registered as a foreign agent after being fired for not being honest about his contacts with the Russian ambassador. His attorney general, at best, misled Congress under oath.
— Despite the chaos and the growing credibility gap, Trump is systematically succeeding in his quest to “deconstruct the administrative state,” as his chief strategist Stephen K. Bannon puts it. He’s pursued the most aggressive regulatory rollback since Ronald Reagan, especially on environmental issues, with a series of bills and executive orders. He’s placed devoted ideologues into perches from which they can stop aggressively enforcing laws that conservatives don’t like. By not filling certain posts, he’s ensuring that certain government functions will simply not be performed. His budget proposal spotlighted his desire to make as much of the federal bureaucracy as possible wither on the vine.

— Trump has been using executive orders to tie the hands of rule makers. He put in place a regulatory freeze during his first hours, mandated that two regulations be repealed for every new one that goes on the books and ordered a top-to-bottom review of the government with an eye toward shrinking it.
Any day now, Trump is expected to sign an executive order aimed at undoing Obama’s Clean Power Plan and end a moratorium on federal-land coal mining. This would ensure that the U.S. does not meet its commitments under the Paris climate agreement.

The administration is also preparing new executive orders to re-examine all 14 U.S. free trade agreements, including NAFTA, and the president could start to sign some of them this week.

— Trump plans to unveil a new White House office today with sweeping authority to overhaul the federal bureaucracy and, potentially, privatize some government functions. “The Office of American Innovation, to be led by Jared Kushner, the president’s son-in-law and senior adviser, will operate as its own nimble power center within the West Wing and will report directly to Trump,” Ashley Parker and Philip Rucker report. “Viewed internally as a SWAT team of strategic consultants, the office will be staffed by former business executives and is designed to … create a lasting legacy for a president still searching for signature achievements. … Kushner’s team is being formalized just as the Trump administration is proposing sweeping budget cuts across many departments, and members said they would help find efficiencies.”

Kushner’s ambitions are grand: “At least to start, the team plans to focus its attention on re-imagining Veterans Affairs; modernizing the technology and data infrastructure of every federal department and agency; remodeling workforce-training programs; and developing ‘transformative projects’ under the banner of Trump’s $1 trillion infrastructure plan, such as providing broadband Internet service to every American. In some cases, the office could direct that government functions be privatized, or that existing contracts be awarded to new bidders.”

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On Gorsuch, Deference, & The Administrative State

by Paul Wickham Schmidt

Hohmann’s points make quite a bit of sense to me — until he gets down to his rather remarkable conclusion that progressives should have invested more in a fight against Gorsuch. What? Just how would they have done that? The GOP has the votes to confirm, as they will do, and there is nothing the Dems can do to stop it, except to look feeble, petty, and out of touch in the attempt.

The confirmation hearings revealed nothing that was not already known. Gorsuch should be a reliable conservative vote on the Court, perhaps, but not necessarily, even more than Justice Scalia. Surprise!

We just had an election during which McConnell’s scheme to block the nomination of Chief Judge Merrick Garland to the Supremes, the control of the Senate, and the ability of the next President to appoint a liberal (Hillary) or a conservative (Trump) as Scalia’s replacement were big issues. And, guess what? Whether Dems like it or not, the GOP won both the Presidency and the Senate and thereby the ability to appoint their man (in this case) as the next Justice.

What’s remarkable about that? It would have only been remarkable if President Trump had nominated someone less conservative than Judge Gorsuch. And, certainly, if Hillary had won and the Democrats won the Senate she could legitimately have chosen to resubmit Judge Garland or chosen an even more liberal candidate who would have duly been confirmed by the Democrats over the GOP’s objections. Elections have consequences, particularly when your party loses control of both of the political branches of Government.

I continue to suspect that while Justice Gorsuch will be very conservative, at some point in the future he will be persuaded to side with the so-called “liberal Justices” against some position that is key to the GOP — perhaps, the scope of Executive authority. At that point, the same GOP Senators who gushed on about his “judicial independence” will be screaming “betrayal,” while the Democrats will be congratulating him on “conscientiously following the law.”

Look at how Chief Justice Roberts went from poster boy for judicial conservatism to “dupe of the left” just by failing to veto Obamacare as the GOP had been counting on. All politicians want judges who exercise their “judicial independence” in a predictable way consistent with the political philosophy of the party that appointed them. Once on the bench, however, with lifetime tenure and only their judicial colleagues to answer to, few actually live up to all of the exceptions of their political appointers.

Moreover, I don’t agree with the supposedly “liberal” position that Executive Branch administrative judges (like I was) and bureaucrats (which I also was) should have the power to impose their views on legal issues, even if not particularly sound ones, on the Article III Judiciary. Chief Justice John Marshall must be turning over in his grave, while Thomas Jefferson dances on top of it, at this bizarre voluntary surrender of judicial authority known as “Chevron.”

There is always pressure on Executive Branch officials, be they administrative judges or just “regular agency bureaucrats,” to construe the law in ways that favor Executive policies and Executive power over the power and prerogatives of the other two branches of Government and often over the rights of individuals in the U.S.

Deciding difficult questions of law, where the answers are not clear, is what Article III Judges are paid to do, and what they are supposed to do under the Constitution! At one time, this is what they actually did! The pre-Chevron “Skidmore doctrine” already gave the Article III Judiciary adequate latitude to recognize the expertise of certain Executive Branch officials and to defer to their interpretation when it appeared to be the best one, or at least as good as any of the alternatives.

But, Chevron basically substituted the concept of “any plausible interpretation” for the “best interpretation.” That’s simply not the way an independent judiciary should function under the separation of powers established in our Constitution.

I say all of this as someone who spent the bulk of my professional career as a public servant within the “administrative state” and who, unlike the Bannons of the world, believes in the power of the Federal Government to do good things for the general population. But, I have also seen first-hand the weaknesses and biases of the Executive when it comes to interpreting the law.

Meaningful independent judicial oversight over the “administrative state,” which includes “de novo” (basically unrestricted) review of Executive legal decisions by the Article III Judiciary, is a requirement for fairness and due process under our Constitution.

Finally, the Dems should abandon Schumer’s ill-conceived idea of a “Gorsuch filibuster.” Of the minority of Americans who actually care about the Gorsuch confirmation, only a minority of those are opposed. In other words, the Dems are about to proceed on a futile parliamentary maneuver that really only speaks to a small number of voting Americans, who are already in their “base.” Absolutely no need to do that.

What is needed if the Dems don’t want another Gorsuch appointment is to start winning more elections, particularly in the U.S. Senate and for the Presidency the next time around. That will require more than feeble posturing, tilting at windmills, and some additional “Trump fails.”

The Democrats need some dynamic leadership (which currently is conspicuously absent) and some real, down to earth programs and proposals to solve America’s problems (something which I haven’t heard to date). What can the Dems do that the GOP can’t, and why should folks care?

Otherwise, the next nominee for the Supremes could be along the lines of Judge Jeannie or Judge Napolitano. And, the Dems will continue to be powerless to stop it.

PWS

03/27/17

POLITICS/SUPREME COURT: It’s Time For Dems To Stand Up To Their Off-Base Base — The Folks Who Helped Put Trump In Power Now Want to Drive The Opposition Agenda!

http://www.huffingtonpost.com/entry/democrats-supreme-court-neil-gorsuch_us_58ce94cce4b00705db502c82

From HuffPost:

“Democrats know they don’t have the votes to stop Supreme Court nominee Neil Gorsuch from clearing his Senate confirmation hearing, which begins Monday. But they don’t appear to have a strategy, or even the energy, for a coordinated fight against President Donald Trump’s conservative court pick.

Chalk it up to Trump’s chaotic administration, or to Senate Minority Leader Chuck Schumer’s low-key approach. Democrats just haven’t treated Gorsuch’s nomination as the kind of high-profile ideological battle that Supreme Court choices traditionally bring about. Even in the days leading up the hearing, it’s felt more like an afterthought on Capitol Hill.

“I hope the questions are good,” Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, told The Huffington Post on Wednesday when asked about her thoughts heading into the hearing. Asked if there are any particular issues she plans to press Gorsuch on, she replied, “Not right now.”

Progressive advocacy groups have been demanding a real fight against Gorsuch, who, as an appellate judge on the U.S. Court of Appeals for the 10th Circuit, built a record of opposing reproductive rights, LGBTQ rights, civil rights, workers’ rights, immigrants’ rights and environmental protections.

Led by NARAL Pro-Choice America, 11 organizations sent a letter to Senate Democrats this month torching them for having “failed to demonstrate a strong, unified resistance to this nominee, despite the fact that he is an ultra-conservative jurist who will undermine our basic freedoms…. We need you to do better.”

They also delivered more than 1 million petitions to the Senate urging Democrats “to oppose Donald Trump’s extreme anti-choice Supreme Court nominee.”

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Barring something we don’t know yet, Judge Neil Gorsuch will become the next Associate Justice of the U.S. Supreme Court. Yes, he is very conservative. And, yes, he might well vote against some legal positions that Democrats hold dear, like Roe v. Wade.

But, we can hardly know that yet. Funny things happen when Federal Judges get lifetime appointments to collegial courts and are exposed to equally well-qualified jurists with differing views. Whether we admit it or not, as a former member of a “collegial administrative court,” I can say that the views and jurisprudence, as well as the personalities, of the other jurists, do influence, and sometime change, the outcomes of cases.

Moreover, we had an election in which the existing vacancy at the Supreme Court was a major issue brought up by both parties. And, guess what? The GOP won and the Dems lost. Not enough folks in the right places were motivated by the inevitability of a conservative pick to replace the late Justice Scalia to put Hillary Clinton in office.

While I am by no means a fan of the Trump Presidency, I find his nomination of Judge Gorsuch one of his best and most “Presidential” moves yet. Judge Gorsuch is a serious, scholarly, productive Federal Judge with experience working on a collegial court. He certainly seems to be someone willing to engage in judicial dialogue and carefully consider the views of his colleagues — necessary qualities that were not always present in Justice Scalia’s largely polarizing career.

In any event, one would not reasonably have expected President Trump to appoint Judge Merrick Garland or a Justice Sotomayor, Justice Kagan, or Justice Ginsburg “clone” to the Court, any more than we would have expected Hillary Clinton to appoint someone like Judge Gorsuch.

The groups pushing the Dems to engage in futile obstruction of the Gorsuch nomination, and to “punish” those who fail to submit to their demands are the very same disgruntled progressives and former Bernie supporters who failed to turn out the vote in sufficient numbers to beat Trump in places like Wisconsin, Pennsylvania, Michigan, North Carolina, and Ohio, states which had voted for Obama and which should have been, but weren’t, “winners” for Clinton.

Yes, “Obstructionist Politics” worked for the GOP. Big time! But the Dems strength is that they are not the GOP. Trying to turn the Democratic Party into the “Tea Party of the Left” is not going to win elections. And, it’s going to take more than miscues by President Trump to get the Dems back in power. The “expose his flaws” campaign theory was proved to be stunningly unsuccessful in the 2016 election. Doubling down on it is going to be equally unsuccessful.

No, the Dems are going to have to do more than oppose and point out Trump’s many, well-known flaws. They are going to have to come up with better programs that the country can afford and “sell” them to the voters, including some who voted for Trump. So far, I haven’t seen much of that, notwithstanding all the opposition energy that has been generated.

Pushing a futile, highly idealogical opposition to Judge Gorsuch is not the way to present yourself as the “grown-up alternative to Trumpism.” And, it is way past time for the Dems to abandon the practice of both parties of using serious and important Federal judgeships as “political footballs.”

Yes, of course, Democratic Senators should ask Judge Gorsuch tough questions. And, of course, any Senator who feels conscience bound to do so should vote against the nomination. But, for reasons of conscience, not in response to an anti-Gorsuch “campaign” being conducted by some leftist groups.

There is no reason for the Dems to be rude or obstructionist during this confirmation process. Do what you have to do, let Justice Gorsuch take his seat, and start working on some alternative programs to what President Trump and the GOP have proposed. Otherwise, Judge Neil Gorsuch will be just the first of many Supreme Court picks for President Trump and the GOP. And, the Dems will have mostly themselves to blame.

PWS

03/20/17

This November, vote like your life depends on it. Because it does!

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