Despite (or because of) the fact that Trump’s attorney recently implicated him in an illegal scheme to hide his extramarital affairs from the electorate during the 2016 election, Republicans in the Senate are barreling ahead with hearings on Donald Trump’s Supreme Court nominee, Brett Kavanaugh.
Kavanaugh has argued that sitting presidents cannot be indicted, which makes his—or any—nomination to the Supreme Court by a current “un-indicted co-conspirator” illegitimate on its face. (That Trump continues to advance his view that the Department of Justice and the judiciary should bend to his will, coupled with lingering questions concerning his campaign’s collusion with foreign adversaries to win the election only makes the case stronger.)
Thankfully, Senate Democrats are starting to get the message and several have come out against Kavanugh’s nomination, urging their cowardly colleagues across the aisle to delay the hearings until, at the very least, pertinent documents relating to Kavanaugh’s past work in the George W. Bush administration can be made available.
Democrats interrupted opening statements during today’s hearings, eviscerating GOP Judiciary Committee Chairman Chuck Grassley and demanding the release of documents from Kavanaugh’s tenure in the George W. Bush White House. Democratic Senator Richard Blumenthal called for the committee to adjourn, prompting cheers from the crowd.
The case for blocking Kavanaugh is an easy one to make—it took me just a couple sentences. More difficult is the one calling for the impeachment and removal of Neil Gorsuch, who President Trump nominated to fill the seat of the late Antonin Scalia after unprecedented GOP obstruction.
First, let’s revisit the conditions under which Scalia’s seat became vacant and, more importantly, the conditions under which it remained vacant for over a year.
In 2012, the majority of the American people re-elected Barack Obama to serve a four-year term as president. The Supreme Court, as it increasingly is, was a hot-button issue during the election and the voters decided to entrust Barack Obama with nominating justices to fill any vacancies that might arise during that term.
In February of 2016, with nearly a year left in Obama’s term, the death of arch-conservative Antonin Scalia opened up a vacancy on the Court. Before his body scarcely had time to cool, Republican Senate Majority Leader Mitch McConnell took the unprecedented step of announcing that the U.S. Senate would not consider any nominee from President Obama.
“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell wrote, “Therefore, this vacancy should not be filled until we have a new president.”
Donald Trump, who would go on to win the Republican Party’s nomination, urged McConnell to “delay, delay, delay.” Republican Senators Ted Cruz, John McCain, and Richard Burr brazenly pledged they would continue to obstruct and hold the seat open in the event Hillary Clinton won the election.
McConnell may have prohibited the Senate from fulfilling its Constitutional duty, but President Obama fulfilled his, nominating centrist judge Merrick Garland to the seat. Though a smattering of GOP Senators agreed to courtesy meetings with Garland, the Republican blockade held firm. There were “no hearings, no votes, no action whatsoever” on the Garland nomination. An open Supreme Court seat was effectively stolen from the first African-American president.
In November 2016, the American people voiced their opinion on who should nominate the next Supreme Court justice and they chose Hillary Clinton by a margin of over 3 million votes. Thanks to the peculiarities of the Electoral College, however, the power to nominate the Supreme Court justice fell to the winner of the election, Donald Trump.
On January 31, 2017, President Trump nominated Neil Gorsuch to the stolen seat. Gorsuch was narrowly confirmed by the Senate after Republicans invoked the “nuclear option” to break a Democratic filibuster with a simple majority.
It was an improper nomination to a stolen Supreme Court seat by a president who lost the popular vote—barely eking out an Electoral College victory by 77,000 votes in three states—and entered office under a cloud of suspicion that, if not for collusion with a hostile foreign power, he would still be defrauding investors in the New York City real estate market.
For Gorsuch to remain as one of the sole, final arbiters of all U.S. law for the rest of his natural life would not only compound the injustice that put him on the bench in the first place, it would ratify the Republican Senate’s radical departure from the norms of civil governance. Indeed, it incentivizes even more radical behavior in the future. (Keep in mind that Senators Cruz, McCain, and Burr all pledged more unprecedented obstruction to prevent a hypothetical President Clinton from filling the seat.)
It’s true that Supreme Court justices are not usually impeached, but, thanks to Mitch McConnell and the rest of the Republicans in the Senate, it has now happened as many times as the partisan theft of a Supreme Court seat.
In 1804, at the behest of President Thomas Jefferson, Supreme Court Justice Samuel P. Chase was impeached by the House of Representatives for what Jefferson saw as partisan attacks and overstepping judicial authority. While he survived being removed from the bench, the incident firmly establishes judicial impeachment as an inherently political issue. That means that in impeaching Gorsuch, Democrats would have precedent on their side.
Additionally, the U.S. Constitution is vague about what constitutes an impeachable offense, saying only that Supreme Court justices “shall hold their Offices during good Behavior.” This vagueness grants Congress broad authority to determine what qualifies as “good Behavior,” including whether or not accepting a stolen Supreme Court seat (thereby tacitly endorsing the theft) constitutes such behavior. In impeaching Gorsuch, Democrats would have the Constitution on their side.
So Democrats can impeach Gorsuch as a matter of fact and they must impeach Gorsuch as a matter of justice, but should they as a matter of political expediency? I say yes. The political arguments against impeaching Gorsuch mostly amount to cries that it will embolden Republicans to become even more radical in their approach.
For those concerned that Republicans need a permission slip from Democrats to breach long-held norms, I have two words for you: Merrick Garland. Republican state legislators in Pennsylvania and North Carolina have already opened this Pandora’s box, threatening to impeach state Supreme Court justices who ruled against their unprecedented power grabs.
Indeed, the norm-shredding has been primarily a Republican Party endeavor for quite some time and removing Gorsuch would help staunch the bleeding from hundreds of tiny cuts.
Republican lawmakers have been frantically tugging the levers of government to help them remain in power across the country: gerrymandering districts to produce lopsided gains, shutting down polling places in primarily minority precincts, and restricting the franchise through onerous voter I.D. laws. Their efforts have been aided by a conservative Supreme Court, which gutted the Voting Rights Act of 1965 in 2013. Rather than encouraging them, impeaching and removing Gorsuch would help put a stop to illiberal abuses by radical Republicans nationwide.
With Kavanaugh and Gorsuch on the bench, the Supreme Court will not only be fully transformed into an organ of the Republican Party, it will be insulated from the will of the voters for a generation or more. Medicare for all, campaign finance reform, anti-corruption legislation, corporate accountability and other progressive goals will be stillborn the moment they pass a Democratic congress. And, just as they did with the Voting Rights Act of 1965, popular gains long considered settled law will be rolled back by the new conservative majority, including Roe v. Wade.
Meanwhile, the highest court in the land will continue to abet the GOP’s strangling of democracy, enshrining the rule of a shrinking minority. The senators who opposed Gorsuch received almost 20 million more votes than those who supported him. They also represent more than 25 million Americans.
If Gorsuch remains on the bench, the “voice” of the American people will continue to fall on deaf ears while the Court tips the balance in favor of wealthy corporations, aging baby boomers, and radical Republicans, already artificially boosted by extra-judicial power grabs. Our democracy will continue to stagnate, people will become angry, and eventually, they will revolt. By then it might be too late for the American experiment.
Impeaching Neil Gorsuch is a first—and necessary—step in preventing this bleak future.