While We Were Sleeping…

Tuesday night, Donald Trump announced his nominee for the Supreme Court seat that has been vacant since the death of Antonin Scalia. When I went to my computer yesterday morning, I found the predictable emails claiming that Judge Gorsuch is an unacceptable, far-right threat to the Republic and must be stopped (and oh, send money).

I agree that this nomination should be rejected (although I doubt it will be), but not because the Judge himself is outside the legal mainstream. He isn’t. He is certainly more conservative than I would like, and I disagree strongly with his particular approach to originalism. But accusations that he is an unacceptable ideologue are intellectually dishonest.

The real reason his nomination should be rejected is that placing him on the Supreme Court would reward an unprecedented assault on the rule of law–the refusal of the Senate to even consider President Obama’s nomination of Merrick Garland.

They blocked that nomination for entirely specious reasons, simply because they could.

I don’t think most Americans understand the implications of that action–implications that  go well beyond the makeup of the Supreme Court. In fact, the sheer effrontery of that power play requires us to consider the possibility–really, the likelihood– that we are no longer either a democracy or a republic; that during the past several years, while most Americans were comfortably detached from political activism and participation, a far-right faction of the Republican party managed to pull off a bloodless coup.

In plain sight.

Thanks to strategic gerrymandering, voters no longer choose their representatives–the representatives choose their voters. Together with successful vote suppression tactics (aided and abetted by voter apathy and citizen disengagement), the result is that this country is now run by people chosen by barely a quarter of those entitled to vote.

Thanks to manipulation of the filibuster, majority rule is no longer sufficient to pass legislation in the Senate. A minority of that body can block anything.

We are now governed by people who sneer at the rules of a constitutional system intended to constrain precisely the sort of power they now wield.

In the past, America has prided itself on adherence to the rule of law. A fundamental tenet of the rule of law is that no one is above the law–that the rules apply to everyone, governors and governed alike. Senator McConnell’s willingness to place raw power above that principle–and to gloat about it– was evidence that these radical usurpers no longer feel it necessary to give even lip service to that foundational principle.

It was the ultimate “fuck you, America. We have seized power and can do what we want.”

If Gorsuch is confirmed, so is the coup. It has nothing at all to do with his  judicial philosophy or bona fides.

I’m very much afraid that while Americans were sleeping through the warning signs, we lost our country.


  1. Yes, Shelia, you have described exactly where this country is today… lost. As for myself, I cannot imagine ANY scenario to regain it that does not involve violence. The alternative, doing nothing, means a continued descent into a kind of slavery, poverty, and suffering not seen on the earth before. I may have to take a break today and sit down and have a good cry.

  2. Okay, then what? Refuse to confirm a replacement for Justice Scalia until there’s a D in the Oval Office?

    Yes, the Senate Republicans shirked their Constitutional responsibility to advise and consent, not to mention pulling an irresponsible political stunt, by refusing to confirm Judge Garland. But if the Democrats try to block Judge Gorsuch’s confirmation in retaliation, they’ll be guilty of more or less the same thing. The remedy for that sort of behavior lies in the ballot box. The voters had their opportunity to throw the rascals out — or at least some of the rascals — and they did not. That should be the end of it. As one Democratic Senator (I don’t recall who it was) has already said, two wrongs don’t make a right. Or as Michelle Obama said, whey they go low, we go high.

    I think the Senate Democrats should consider Judge Gorsuch on his own merits and then vote according to their judgment. If he’s confirmed, so be it.

  3. mirsm:

    That is exactly what the republicans expect; that democrats are afraid to use the same tactics as the republicans. I believe it’s time to stop acting like democrats lite and start acting like they want to be back in control and further to use the republican play book against Paul Ryan and Mitch McConnell. Start today.

  4. mirsm,

    I strongly disagree with you. Playing nice and by the rules is how we allowed the tea party to take over this country. It is now way past time to play hardball. I believe that is the only way we will be able to stop them from completely turning our country into their personal kingdom. We should have fought back harder years ago and demanded that the likes of McConnell be stopped in their tracks. The fact that he and others have gotten away with abuse of the system for years demands that we rise up and fight. It seems that it must be now or never.

  5. The Republicans have proven repeatedly that they have no tolerance for the rule of law. Give them a taste of their own medicine.

  6. mirsm:

    To go along with this latest Republican move to consolidate power is to go along with a kind of thievery. Stealing a seat on the Supreme Court is no different than stealing anything else, worse perhaps, because the victim in this case is the entire population of the country. For the Demarcates to go along would be the same as aiding and abetting.
    When Democrats “went along to get along” and put G W Bush in the White House the message given to the far right was, “you can do anything you want and get away with it.” Unfairness and illegality became the norm. Acceptable! The results are everywhere across America: gerrymandering, massive secret money donations to candidates, corruption of every institution in the land.
    I don’t give a damn what the qualifications of the nominee are. The seat is stolen!
    As for “when they go low, we go high”, I say “what the hell has that ever gotten us?” A smug righteousness? The fight is in the gutter, and it is time for real American patriots to pull on the hip boots and wade in. Or as my Daddy used to say, “If you can’t stand the heat, get out of the kitchen.”

  7. “…consider the possibility–really, the likelihood– that we are no longer either a democracy or a republic;”

    Sheila; I don’t believe I am taking your words out of context when I note that this country currently IS neither democracy or republic but is “the leader against world peace”. Is there a term for that other than “fascism” or “tyranny”? Does either term fit; IS there and has their ever been a term to describe or fit what this country has become in less than two weeks?

    mirsm; to answer your question regarding this particular appointment, we need to wait until there are cooler, more responsible, less racist and bigoted heads, to make the decision. NO; we should not have to wait till there is a Democrat in the White House, we should wait until some of the rational Republican Congressional members grow some balls and crawl out from under their rocks to stop automatically approving any and every appointment Trump, Pence and Bannon throw at them. Will they realize in time that the people in their districts who elected them are steadily being decimated by Trump & Co.? Will they realize they will be protecting democracy, their constituents as well as their own elected positions? Do they see the world-wide response to what they are a party to since January 20, 2017? It is my believe we will have to begin voting them out of office before they “see the light” and realize that light at the end of the tunnel is the Trump train coming straight at them. The same goes for middle-of-the-road Democratic members who are the weak links in our chain to secure democracy.

    “While We Were Sleeping” Have any of you had a decent night’s sleep since November 8, 2016? I have not; and my days are no longer peaceful. My soul is NOT rested.

  8. Thanks, Sheila, for attempting to point out a frequently overlooked distinction between judicial philosophy and “ideology”: There are two basic schools of thought concerning judicial interpretation of our Constitution…..one a “strict construction” concept (whether “original intent or some other variation) that essentially says the meaning was set at the time of adoption and remains immutably so until the document is amended. The second “constitution is a living document” philosophy which tend to look more at what earlier words mean in light of conditions the Founders may not have even dreamed might exist. There are valid pros and cons regarding both types of approach…….and we progressives (often with the “send money” message you refer to) do ourselves little favor in automatically demonizing those who espouse the former approach as anti-this or anti that. (Likewise, those on the right ought to lower their rhetoric (also often with “send money” concerning those who favor the latter.

    It would be a welcome exercise in the civic literacy effort you espouse if that effort included some basic discourse in how and why some folks favor one approach to constitutional interpretation and who other favor the other. And how, for example, one should go about interpreting nebulous terms like “equal protection under the law” under both approaches.

    What all ought to reject are judicial opinions that depart from these approaches in order to arrive at a result the author of the opinion wants to get to in the first place, especially if it reflects his or her ideology. Seventh Circuit Judge Posner has taken the late Anton Scalia for his employing “original intent” when it suited his purpose, but ignoring it when it didn’t. A good confirmation question for Donald Trump’s new SCOTUS nominee would be to ask him his opinion on his own consistency in this area.

    But alas, all that is much too lofty for the noisy voices on either side of the cultural chasm. “Living document” judges are commie perverts and destined to hell ad infinitum; “Strict Constructionists drink or bathe in pure fascism at every opportunity. It’s the divided American way.

  9. I believe that over the years sadly the Democratic party has taken the high road to no avail. And the voters see it as weakness. And don’t believe the Democratic party is fighting hard enough for what they believe in. I think it is the cause of the voter apathy that is so prevalent in the Democratic party.

  10. I always see the phrase “throw them out” as used often without understanding the dynamics of returning incumbents to office.

    Incumbents are returned at a rate between 90% – 95%: Senators at about 90% and Representatives at about 95%.

    Let’s not kid ourselves, throwing them out requires more than just discontent; it requires an upheaval to reset Congress.

    It seems that most voters always think it is the “other guy or gal” who is at fault and that their own officials are doing just great. But, the bottom line is that if incumbents retain their seats at the rates shown, nothing will change.


  11. It really doesn’t matter what the Dems do. Gorsuch will get his appointment because McConnell will simply suspend the philibuster for the vote. Yesterday, two more of Trump’s nominees were sent to the floor for a vote when the Finance Committee suspended the rules allowing it to conduct business without any Democrats present. Republicans have zero respect for the rules or for the rule of law.

    Meanwhile, back at the ranch, we only need one more Republican to stop Betsy DeVos from giving all of our school funding to parochial schools and destroying the last vestages of a once great public school system.

  12. What Sheila has so wonderfully described today is the reason why when I write about “our tattered democracy” or “our democracy, or what is left of it” into my blogs. I have to admit that I may be trying to resurrect a dead horse, i.e., that our democracy may be so far gone that there is little to nothing to resurrect.
    In spite of the evidence Shelia has so well presented, however, I cling to the faint and fleeting hope that there still exists some sense of the importance of preserving our democracy among thinking people and that we can somehow bring this set of democratic institutions back to life, though I must (again) admit that with a narcissistic dictator at the helm and with a fascist senior adviser at his side such prospects look dim.
    The way things are going with the howling masses demanding that the dictator take away what rights we have left under the guises of “making America safe” or

  13. Whenever I hear comments about the Democrats’ apathy and lack of ability to fight the Far Right, I remember the Bernie Sanders campaign. Bernie drew much larger crowds than any other candidate, either Republican or Democrat. His supporters were highly motivated and energetic. Instead of taking advantage, the Democratic Party used questionable methods to suppress his campaign. Until we become wiser about the direction our party should take, and truly listen to our constituents, we will continue to fail.

  14. mea culpa – hit the wrong button, so to continue: “great again” don’t help, either. Today, we who would die for our democracy may be relegated to the catacombs of thought as were the ancient Christians under dictatorial Roman rule, but I here note that the “Christians” prevailed. Substitute “citizens” for Christians (since religion or lack of it is immaterial under our Constitution) and you will find a rough similarity (adjusted for the issues of the day). My advice? Get off the sofa and into the streets and airways and wherever in defense of our most precious national asset, our democracy.

  15. Sheila, you’re probably much better informed, but perhaps Gorsuch might be better than the “next” nominee proposed. An intelligent person should see the “light”. I’m always nervous however when people call on God. It should be “us” to manage our world.

    Finally, if they use nuclear option then they realize that this could then in turn become a precedent that would allow democrats to really turn back the clock in either 4 or 8 years. If Gorsuch is a strong believer in legislative power he becomes an asset.

  16. ” …but I here note that the “Christians” prevailed”

    Gerald; only those “Christians” who read Pence’s Bible and follow his “Christian teachings” prevailed in Indiana and his RFRA law will be raised to the federal level as soon as he can push it through the “Christian” Republican Congress.

  17. Now my Aunt and Uncle are both teachers from a blue state, Illinois. I told them several years ago that the Democrats are playing it too nice and we are getting railroaded. They kept stating that we must always take the high road and my argument was that we needed to get dirty; but I am a blue in a red state where I have watched the Democratic party become weak over gerrymandering, right to work, access to voting restricted, etc…so weak that people who are running in local and state elections receive virtually no help with their campaigns. During this same conversation, I told them I like this Elizabeth Warren and Bernie Sanders as I saw them as fighters. In your face, the bullet between the eyes fighters.

    The past few months have confirmed or validated my thoughts that some may think are a conspiracy theory, but just my observation and rudimentary thoughts. I think there has been a faction of the GOP that no longer believes in democracy. They no longer believe in diplomacy; their way is the only way (which according to my Evangelical friends is how they are raised. Their religion is the only way to righteousness) and the rest of us need to get on board. They started at the local and state level to gain this power and they have succeeded. The Democrats were naive and caught off guard, they still believed in diplomacy and democracy and were too focused on the National level and probably overly reliant on the big blue states to carry them to victory. They put their money and focus on those states and were ignoring the middle states and look what has happened. Just some of my random thoughts

  18. JoAnn – Noted, but I think Pence’s views as expressed in federal legislation is per se unconstitutional, although after Hobby Lobby and with the apparent appointment of another Scalia to the court, I wouldn’t bet on it. What Pence wants is a fascist state and Christianity or any other captive means of achieving fascism is merely a means to acheive such a goal. Hitler pulled the same trick with his scapegoating of Jews, communists and other minorities. Trump is using the media. The pattern is familiar.

  19. To simplify down to the very basics, democracy and therefore freedom are on the ropes because voters here would rather be lied to than to invest in learning the truth. We have become so comfortable that that position is widely seen to be an entitlement and our future doesn’t require our efforts, it’s been guaranteed by the blood of our predecessors.

    Advertising has taken right and wrong and diluted it bit by bit until it’s like homeopathic medicine – a mere suggestion not a cure.

    Republicans, of which I am one, merely let that happen and rode it down the mountain.

    Now Democrats have to decide if they want power or truth on their side.

    It’s tempting to say lets elect for power now and go back to to truth after. I personally though still believe that power corrupts and once left behind, truth that principle are casualties.

    So our future is decidedly poorer than our past in every way that counts. Our rein as the standard of the world is over. IMO China will inherit our former position and mankind made poorer by it.

    There are no principles left to defend.

  20. At this point Trump seems to be headed toward Impeachment. Dems should wait. What happens if he is?

  21. One of my Senators publicly stated the court could operate just fine, and has before, with 8 justices. I have not so subtly reminded Grassley of his spoken words, for the little good it will do, He will put party ahead of country and then lie about it.

    As fot Gosuck’s philosophy, compared to Garland, Gosuck is an extremist of the right. As are all wingnuts jurists and there are a slew of them that need to be approved for federal courts which wingnuts refused to allow Obama to fill.

    Personally, I don’t believe 4 years of no additions to the Scotus is too much to ask for. Unfortunately, wingnuts will use the nuke option and pass this nominee because they can and it is part and parcel of their destruction of America.

  22. Margaret McGovern @ 8:40 am. As a Bernie supporter I agree with your comments. Those of us in the Progressive Wing of politics saw Bernie as a hope to change the Democrats course away from Corporatism. Bernie espoused a 50 state campaign. Some of us were not sleeping, but the Democratic Corporate Establishment did all it could with the DNC and Super Delegates to short circuit Bernie’s Campaign. You can complain all you want about gerrymandering but where was the National and State Democratic Parties when all this was happening.

    Last night I watched some program on CNN. The “Host” seemed to arrive with a script concerning confirming the Trumpet’s SCOTUS pick. The message I received is the Democrats should hurry up and approve Judge Gorsuch.

    I hear about these strict constructionists and original intent vs the Constitution as living document. This should not be a binary choice. Obviously our whole society has changed since the late 18th Century. The basic construction of the government remains the same. Since the 18th Century slavery has been outlawed, woman have the right the vote, same sex marriage is allowed, the infrastructure of the USA has drastically changed, we have went from making stage coaches to 100 mph auto mobiles, we have added wireless communication, planes, we have went from single shot muskets to semi-automatic rifles, our tiny military once confined to east coast is now world wide, etc. The intent in the Constitution was military action required a Declaration of War, now Presidents since LBJ receive a blank check from Congress.

    So we have to remain true to the Representative Democracy that was outlined, but at the same time understand the world of the late 18th century no longer exists. The Constitution allowed the Trumpet to be elected, it does not imply he should be treated as a Royal King with no opposition.

  23. If anyone wants to get involved, you can. Check out this link and download the guide. It’s free. You do not have to donate and once you get involved, enter your zip code and find out where the next activity or meeting is. The AZ group has 1000 members and it was created about 2 weeks ago. https://www.indivisibleguide.com/

  24. I put in Indy’s zip code and 52 groups came up within 100 miles. Looks pretty active to me! Get up off the couch, your desk chair and roll up your sleeves.

  25. Good comment from the Guardian below. I have noticed the Republicans, Trump and his Trumpkins are getting nervous over marches and protests.

    Leaving aside that peaceful protest is the root of democracy, the idea that mass protest doesn’t achieve anything can be made only by someone with literally no knowledge of history. As for the suggestion that the best way to deal with Trump is not mass protest but “respectful” engagement, as the (UK) Times suggested, this can be made only by someone with absolutely no understanding of the man. He is not a normal politician. To treat him as one is almost as stupid as sneering at protest.

  26. Democrats aren’t fighters. Bullies win. Simple as that.

    Actually, not even that simple, but in fact worse. A great number of people, those with authoritarian personalities, WANT to be bullied. So the bullies win again.

    The only way we win is to fight. “They go low, we go high” is complete idiocy. Our motto should be, “They go low, we make them wish they were never born.”

  27. AgingGrl…I have joined the Indivisible group in Tennessee after Rachel Maddow’s continuous commentary to watch this active group and yes they are very active and thus far they seem organized.

  28. Louie; “Monday morning quarterbacking.” We learned too little, too late that Bernie had hidden enemies in his home camp. Add in the distraction of repeated investigations of Hillary’s earlier clearances of all accusations hyped by the media and aided by the FBI, Bernie was discarded early in the game, he simply refused to lay down and die for them. And it did quickly become a game with the media allowing no one at bat but Trump with their almost 24/7 coverage of his every word. Gerrymandering, as much as it matters, was simply an added distraction from Bernie’s hard driving campaign, no matter how many supporters and donors he had or the historical amount WE, the public, contributed. The media GAVE the election to Trump; how will they handle his turning on them now? They can be the source of win or lose in upcoming elections; our only glimmer of hope is to vote out sitting Republicans. Can we do it with the current Democratic party members – I don’t think so – we need to replace some of them as well as ridding local level and Congress of Republicans. Face it, we are in deep doo-doo and Pete’s one sentence sums it all up at this time. “We have no principles to defend.” Thank you, Pete.

  29. Democrats must seek out tens of individual Republican Senators and scores of Republican Representatives to ensure that Congress does everything possible to limit the dangers a President can do in and to the world. Can Congress pass laws to limit his involvement in certain global areas, or take away his powers (like his ability to push the nuclear button) to limit the damage from his already-occurring insulting of foreign countries? Can it strip him from killing the global environment? I’m hoping Congress does not need to wait for global catastrophe before it can impeach Mr. Trump.

    To achieve the above, Democrats may need to deal with those reasonable Republicans. Dems would need to concede many GOP long-held positions. Gorsuch would be one on these. If Gorsuch passes questions about “Citizens United” type issues in an acceptable manner, the Democrats gain favor with these reasonable GOPs by allowing a straight up vote on Gorsuch. The payoff for all these concessions would be that these scores of reasonable Republicans would help (when the inevitable time comes) to impeach the President.

    A different argument is that until Trump presides for more than a year, the chance of his committing impeachable actions is high. That puts Mr. Trump in the position of a lame-duck President, as Mr. Obama became in his final year. Wait for this first year to pass before allowing a Supreme Court justice appointment. Again, the problem is that reasonable Republican Congressmen are needed.

  30. Margaret McGovern:

    Your point, apparently directed at my post concerning judicial interpretation, about it not having to be a binary choice, is very well taken and insightful.

    The challenge, as it almost always is in this area, to come up with some set of consensus as to what the “real rules” ought to be when deciding that changes which (we think) could not have been envisioned by the writers of our Constitution justify what would appear to many, if not most, to go against the grain of “the plain meaning of the words” and/or (we think) insightful probes into the Founder’s inner thoughts.

    Some have suggested that if our Constitution were not so difficult to amend, this dilemma might not be so seemingly impossible to overcome. All would agree that civil arguments as to the better judicial approach to interpretation beats revolution (of the non-peaceful kind) any day.

  31. Why can’t the Democrats in congress demand that President Trump pull his nominee (Judge Gorsuch) and nominate Merrick Garland so he can finally have his hearing and hopefully be placed on the Supreme Court? I believe I heard President Trump say recently that, “All of us are better off when we act in concert and not conflict.” Granted, he was speaking about foreign affairs, but what if we apply that to what we do right here at home? All of us would be better off if we acted in concert and not conflict.

  32. Thank you Gerald and Louie for your well thought through comments.

    Has anyone read Martha Stout’s book “the sociopath next door”. It is a most interesting read.

    There were over 600 in attendance at the IN-ACLU First Wednesday panel last night. Was anyone of the commenters in attendance? Hope so, if nothing else we were all there supporting each other in personhood and bodies. Important, or perhaps not.

  33. I concur with the previous posts that said the Democrats have played too nice while the Rs have no reluctance to fight dirty. It’s well past time the Ds start fighting at least as dirty unless they want to continue to find themselves on the outside. The phrase “bringing a knife to a gun fight” comes to mind.

  34. Over it at 11:28 a.m.:

    “They go low, we make them wish they were never born.”

    Unfortunately, that needs to be our new mantra. So now we need to find a canny, ruthless Dem to resurrect what is left of the Democratic Party. Perhaps Harry Reid needs a project to keep him engaged in retirement? Is there a modern-day LBJ who can be persuaded to take us on?

  35. First off, I tried the activism site mentioned in another of Prof. Kennedy’s posts. I recommend it highly and plan to use it as best I can. Now regarding the SCOTUS nominee I say this. On the surface he looks OK, but some other things bother me. I do not think he should get a hearing. Going high sounds good when dealing with an enemy that had a sense of reason bout when dealing with the intellectual light weights that comprise the Republican party we cannot afford this courtesy. They, go nuclear we go chemical, take no prisoners and destroy thefse criminals by being better at their game. Push comes to shove, push back harder. Progressives must view this as war that we must win!!

  36. Supreme Court Justice nominee Neil Gorsuch founded and led a student group called the ‘Fascism Forever Club’ at his elite high school, DailyMail.com can reveal.

    The club was set up to rally against the ‘left-wing tendencies’ of his professors while attending a Jesuit all-boys preparatory high school near Washington D.C.

    I read somewhere that Dems can deny unanimous consent in the Sebate and block virtually everything from getting done. Whynot? Wingnuts have shown they are willing to make the government default to prove a point.

  37. While we were awake Trump asked for prayers for Arnold Schwarzenegger to get better ratings on his “Apprentice” TV program and vowed to get rid of the separation of church and state amendment at the National Prayer Breakfast. Think I will go back to sleep now…

  38. You must have been sleeping for the past eight years. You remember: the years of the pen and the phone….a complete disregard of the constitution and the rule of law. Trump is like a breath of fresh air.

  39. A soforenko – You people may have voted for an idiot puppet, but his days are numbered and you will have so much egg on your face, you won’t be able to go out in daylight because the sun will cook that egg. Do you want some toast with that egg?

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