Donald Trump’s ongoing effort to remake the federal courts in his own extreme image is something that ought to cause enormous concern for all caring and thinking Americans.
As veteran court observer Nan Aron of the national Alliance for Justice recently put it:
For 18 months now, Trump has continued to target courts and judges with the crudest of insults, even as his White House works overtime to push forward lower-court judicial nominees who are among the most ideologically extreme and professionally underqualified we have seen in nearly 40 years in this field.”
The poster child for Trump’s ideological assault is Neil Gorsuch – the man who Republicans elevated to the Supreme Court last year. Groomed for a career in legal politics from an early age by his Reagan cabinet member mother (in his college yearbook, Gorsuch celebrated Henry Kissinger’s infamous utterance “The illegal we do immediately. The unconstitutional take a little longer.”), Gorsuch has already more than lived up to right-wing hopes and progressive fears.
In case after case, Gorsuch has rubber-stamped the Trump agenda to the detriment of workers, immigrants, women, LGBT Americans and many others. Republican Senate leader Mitch McConnell even went out of his way to emphasize the hard, cold reality of the Republicans’ ends-justify-the-means brand of Supreme Court politics recently when he posted a photo of himself shaking hands with Gorsuch just minutes after the Court upheld Trump’s Muslim travel ban.
Of course, the tragic fact of the matter is that Gorsuch would still be biding his time on the 10th Circuit Court of Appeals were it not for what ranks as one of the great political crimes of modern American history. Nearly two and a half years after it was perpetrated, the theft of the Court seat from President Obama’s eminently qualified nominee, Merrick Garland, remains an indelible stain on our national government and all parties (like Senator Thom Tillis) who helped facilitate and/or make excuses for it.
Now, of course, with the retirement of the occasionally moderate Anthony Kennedy, Trump has acquired yet another opportunity to appoint a justice and cement a five-to-four right-wing majority on the Court for years to come. Last night, Trump nominated D.C. Circuit Court of Appeals Judge Brett Kavanaugh for the slot and, as so many have long feared, what could be one of the seminal political battles of the 21st Century is upon us. It will be a difficult and uphill fight. (As an aside, it should be noted that Merrick Garland is actually the chief judge on the D.C. Circuit and has served there for 21 years – a decade longer than Kavanaugh).
Make no mistake though: this is not a battle that can be sidestepped. The stakes are simply too high. On issue after issue, Kavanaugh promises to help roll back decades of societal progress and forestall lots more. What’s more, at age 53, he could well serve on the Court till mid-century if confirmed.
Take the issue of reproductive freedom, for example. As Supreme Court expert Ian Millhiser of the Center for American Progress explained recently, the notion that Roe V. Wade will somehow survive the addition of a fifth hard right justice like Kavanaugh to the Court strains credulity.
As Millhiser goes on to explain, the Court doesn’t actually ever have to write the five magic words “Roe v. Wade is overruled” in an opinion. It would be more honest and transparent to do the deed that way, but it’s much more likely that the Court will simply continue to uphold abortion restriction after abortion restriction. As Millhiser observes:
The Supreme Court, in other words, doesn’t need to explicitly overrule Roe in order to overrule Roe. It just needs to make it very clear that, if Texas wants to require every abortion clinic to have an operating room made out of solid gold, Texas is free to do so.”
It’s for this reason – even without an explicit overrule of Roe – that abortion (and even birth control) could be greatly restricted (or even effectively banned) in dozens of states. And so it will go with matters like LGBT rights, health care, environmental protection, gun control, worker rights and, tragically, gerrymandering of the kind in effect and under court challenge in North Carolina.
As the Alliance for Justice put it in a statement:
Brett Kavanaugh’s nomination would threaten the rights of consumers, workers, and immigrants, as well as women’s reproductive rights and protections for clean air and clean water. Kavanaugh tried to sabotage the Affordable Care Act, believes the Consumer Financial Protection Bureau is unconstitutional, and frequently sides with large companies over the interests of consumers.”
The bottom line: The threatened 5-4 ultra-conservative majority on the U.S. Supreme Court is ultimately the byproduct of one thing: the dogged, uncompromising commitment of the nation’s conservative political minority to win at all costs. If progressives hope to resist this regressive tide, they had best get to work playing the same game.