berniesrevolution:

THE OUTLINE

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For anyone with a soul, the Supreme Court’s most recent term has been gut-wrenching. In recent days and weeks, the high court has ruled that employers can bar workers from class-action lawsuits, upheld racial gerrymandering of Texas legislative districts, rubber-stamped President Donald Trump’s Muslim travel ban, invalidated California regulations on crisis pregnancy centers, and neutered public sector unions. In a riveting post-credits sequence, center-right Justice Anthony Kennedy then announced his retirement, paving the way for Trump to appoint some fresh horror to fill the vacancy.

It is no exaggeration to say that the state of the federal judiciary is a disaster for the left. Even if the wildest Russia-related conspiracy theories turn out to be true and Trump is forced out of office and directly into a federal supermax prison, these judges will continue to shape policy for years to come.

Those of us watching in horror as the Court continues to undermine our basic rights may feel powerless to reverse the tide, but fixing Trump’s mess is possible. It will, however, require an opposition committed to enacting reforms that place the rights of Americans over inter-party cordiality. Most importantly, Democrats must commit themselves to packing the Court by adding two additional justices when they next retake the White House.

Things are going to get worse before they get better. The common thread linking the recent spate of bad decisions has been Trump’s first Supreme Court pick: Neil Gorsuch, president emeritus of Fascism Forever, who cast the deciding vote in nearly all of them. Gorsuch has largely delivered on Trump’s promise to his base to bring a consistent right-wing vote to the Court.

All superficial disagreements between Trump and Republicans in Congress on tone and rhetoric melt away when faced with a justice who combines the late Associate Justice Antonin Scalia’s commitment to harsh originalism with the non-threatening good looks of a local news anchor. Indeed, to remind everyone that his firm refusal to confirm Merrick Garland led to Gorsuch’s appointment, Senate Majority Leader Mitch McConnell tweeted out a photo of himself shaking hands with the justice on the day the Muslim travel ban decision was handed down.

Gorsuch is only 50 years old, and the Constitution guarantees him a lifetime appointment. It’s not hard to imagine his tenure lasting another 35 years. Worse, Trump will now get to appoint a second justice, and Democrats have little power to stop him.

Even more appointments could be forthcoming. The Court’s progressive stalwarts, Ruth Bader Ginsburg and Stephen Breyer, are 85 and 79, respectively. A number of “established” rights rest on narrow Supreme Court majorities, and the coming years could result in bedrock decisions like Roe v. Wade and Miranda v. Arizona getting overturned. And this is to say nothing of the dozens of federal district and appeals court judges that Trump has and will continue to appoint to lifetime tenures during his presidency.

Things didn’t have to be this bad. During his two terms in office, President Barack Obama applied the same compromise-minded, controversy-avoidant approach to federal judicial appointments that he did to lawmaking. The result was predictable. Obama would reach across the aisle with moderate nominees, only to have his hand slapped away by McConnell and the rest of the GOP leadership. Even after then-Senate Majority Leader Harry Reid eliminated the filibuster for district and appeals court nominees in 2013, the appointment process often stalled, especially after Republicans regained control of the Senate the following year.

Obama never used his recess appointment power to appoint a judge over GOP obstruction, and he continued to respect the tradition of “blue slips,” which allows an individual senator from the state in which the judicial nominee resides to veto that nominee’s appointment. When his presidency ended, Obama left Trump the gift of 88 district court and 17 appeals court vacancies.

But nothing captured the failure of Obama’s respect for compromise and tradition like the nomination of Merrick Garland in 2016. The debacle forever tainted the joyous occasion of Antonin Scalia’s death, and for this Obama should never be forgiven.

We can’t know exactly what Obama was thinking when he nominated Garland, a moderate D.C. Appeals Court judge, to the Supreme Court, but it seems likely he had one of two strategies in mind. He either earnestly thought, despite years of evidence to the contrary, that the GOP-led Senate would welcome a compromise pick rather than wait out the clock until the possible election of a Republican president. Or, Obama may have believed that by exposing GOP intransigence in the face of Garland’s overwhelming blandness, the fabled moderate voters of America would turn on the Republican party, assuring Hillary Clinton a sweeping victory and saving the seat in the process.

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