Dirty Harry, Mitch McConnell and the Rule of Law

A former student recently asked for my opinion on Neil Gorsuch, Trump’s nominee for the current Supreme Court vacancy. As I told him, my concerns about Gorsuch pale in comparison to my deep disquiet over the Senate’s refusal to “advise and consent” with respect to President Obama’s nomination of Merrick Garland.

Let me be very clear: Had Mitch McConnell and the GOP conducted hearings on Garland’s nomination, and then voted against confirmation, I would have disagreed with the result. But I wouldn’t have been appalled. I wouldn’t have seen a rejection that emerged from the proper process as a dangerous affront to democratic norms and the rule of law.

McConnell’s refusal to follow the standard procedure contemplated by the Constitution and traditionally adhered to by the Senate was a worrisome and unprecedented assault on governmental legitimacy.

If there is one clear distinction between western constitutional systems and the various dictatorships and theocracies around the globe, it is the formers’ emphasis on the importance of fair procedures that everyone, even government, must follow. As I’ve previously argued, the Bill of Rights might justifiably be characterized as a restatement of your mother’s admonition that how you do something can often be more important than what you choose to do.

“The ends do not justify the means” is a fundamental principle of American law.

Adherence to objective and uniform procedures–the institutional means through which governments achieve their ends—is at the core of the rule of law. For ideologues and theocrats, however, achieving the “right” outcome, managing to win one’s preferred outcomes even if that requires ignoring or circumventing accepted rules, is what is important. It’s the age-old conflict between the rule of law and the “rule of men” (aka the exercise of raw power).

I’ve always hated those “Dirty Harry” type movies, where the purported “good guy” foils the villain by breaking the rules. Those movies elevate the ends over the means–just as Mitch McConnell did when he exercised arbitrary power, in defiance of accepted democratic norms, simply because he could.

In an article about Gorsuch, Dahlia Lithwick recently argued that

the nomination is wholly illegitimate. Gorsuch may or may not be a good judge, but there is no principled reason for him to have a hearing when Merrick Garland did not. This is a problem of power, not legal qualifications.

The Democrats have an unpleasant choice to make. They can refuse to participate in Gorsuch’s hearings, implicitly normalizing this sort of thuggish behavior and doing further damage to American law and institutions, or they can participate in the hearings and demonstrate fidelity to the Constitutional process, recognizing that they are thereby tacitly condoning McConnell’s unconscionable breach and arguably encouraging more and further departures from government legitimacy and the rule of law.

Thanks to Mitch McConnell and his desire to flex his legislative muscle, to display to his base and his political opponents alike his power to “steal” a Supreme Court seat, either option will further erode American democracy and diminish respect for American political institutions.


  1. The Supreme Court issue MUST be put on hold until it is determined if the current president is going to be removed as a result of the ongoing investigations. He MUST NOT be given a Supreme Court Justice.

  2. Oh, Shelia, citing Clint Eastwood et al as villains against the American way confirms your subversive reputation. I think you best put a Charles Bronson bobble-head doll on your dashboard to secure your safety.

  3. Morton,

    What’s this SUBVERSIVE “bullshit.” Could you at least explain it a little more specifically? I wouldn’t want to have to classify you as a COWARD.

  4. Morton – Your comment was extremely rude and disrespectful. Especially so, coming from someone who pens articles himself.

  5. A rare point of partial agreement! I think Garland should have had a hearing, but if the choices were to freeze him out or Bork him, freeze him out was the better choice. This Garland treatment is not the first abuse of power perpetrated by a majority…nor the last.

  6. Circumventing the rules seems to have become the operational mode of the Republican Party. Everything from voter obstruction, untraceable campaign donations, and gerrymandering have led the country to where we are now, facing a presidential scandal of treasonous proportions.

    Gorsuch may be a fine lawyer. He may make a fine judge. But if confirmed, he got it dirty… just like the party that put him up. And that folks will follow him and any future decisions he makes for the rest of his life. Hardly a prize to anyone with honor and principles.

  7. Now, for a comment on Sheila’s blog post today –

    McConnell’s refusal to even hold a hearing for President Obama’s nomination of Merrick Garland will have dire consequences for generations to come. He has created an extreme disrespect, by me and millions of others, for any legitimacy the U.S. Supreme Court ever had.

  8. “The Democrats have an unpleasant choice to make.”

    Time for some Gandhi. “Non-cooperation with evil is a sacred duty.”

  9. What if each Democratic Senator just said the following:

    “With all due respect, I was expecting to see Judge Merrick Garland in that seat. Until this misunderstanding is resolved, I have no further questions.”

    Then vote against the nomination and dare McConnell to use the “nuclear” option. Karma will take care of the rest.

  10. Theresa! The sins you describe are not exclusive to one party. Let’s take a closer look at just one; gerrymandering. This right of the majority has been used throughout my lifetime and before. For 40+ years under democrat control for whatever evil purpose they had in mind. The most egregious in my memory was the congressional district in North Carolina that ran the length of the state along the I-95 corridor less than 1 mile wide. As the residents in that “district were almost exclusively African-American, the racism of diluting every district adjacent is obvious. What do you suppose happened when minorities (race or party) complained. I object to the practice now and then. Where were concerned liberals and progressives then?

  11. “Let me be very clear: Had Mitch McConnell and the GOP conducted hearings on Garland’s nomination, and then voted against confirmation, I would have disagreed with the result. But I wouldn’t have been appalled. I wouldn’t have seen a rejection that emerged from the proper process as a dangerous affront to democratic norms and the rule of law.”

    Sheila and Nancy; I had to copy the above paragraph from today’s blog because it states simply and directly “rule of law” as understood by every elected official in our government. Ignoring our constitution has become the foundation of the the Republican party since it was sold on the auction block to the Tea Party in 2009. The admitted group of white Republicans who enacted their own Jim Crow laws at the highest level to stop African-American President Obama from as much progress as possible till they could carry out their current takeover, are finally in control of the country. We are seeing the results of their actions in full force since January 20, 2017. We are also seeing the outcry from the vast majority of the American public, including many who voted for Trump. We have no guarantee that it will end before Trump’s first “100 Days”; a time-frame which needs to be lengthened due to the slow turning of the wheels of justice in this country. The Comey/Rogers hearing yesterday evidenced just how slowly the wheels of justice are turning at this time regarding the Trump/Putin/Russia connections. This is evidenced daily by Trump’s tweets; lied about by Spicer and Conway and laughed at by McConnell and others who are pushing Gorsuch through the democratic system like the proverbial “shit through a goose”.

    As Theresa stated; Gorsuch may be a fine attorney but if appointed, will have gotten the position using dirty politics. By “rule of law”, Merrick Garland should be allowed his rightful hearing…even knowing the probably outcome, no matter who the president is. Personally; every time I see the name Gorsuch, I also see one of the original headlines when his name was first submitted by Trump, the headline regarding his formation in college of a fascist based group for students. Maybe we should learn the names of others who joined his group to learn if any are familiar in government today.

    Morton; if you are familiar at all with “Dirty Harry”, you would understand Sheila’s comparison, he made up his own laws as he went along and enforced them with illegal actions. McConnell has become quite adept at doing this; including turning against his own Kentucky constituents to remove their Constitutional rights and pushing to end health care for a state that contains some of the poorest areas in this country.

  12. Dear Dr. Marcus,

    If only everyone that responded to your missive realized that you were being entirely tongue and cheek. One thing is for sure, you can really stir a pot!!!

  13. Friends, if this is the Morton Marcus I think it is, I would ask everyone to consider sarcasm. It is a high form of humor. Please don’t disparage its use.

  14. Ken, you are right about the “sins” I described being non-exclusive to one political party. Democrats have played dirty too over the years. However, what I was pointing out is that the Republican Party has adopted such sins as a way of doing politics across the country, from top to bottom. It didn’t start with the Tea Party. It started with the patron saint of the Republican Party, Ronald Reagan, when he smeared our system of government with the lie that “the government was the problem”. His political success by using this lie led others in the Republican Party to do the same. Soon the idea that the government was itself “wrong” gave way to “you don’t have to follow the rules because the government’s rules are wrong”.
    Doing away with laws and regulations while arranging things so that only your party won elections has become the basic goal of the Republican Party. And so today we have a presidential administration whose goal is to “deconstruct” the administration of government.
    Yes, the Democrats have played at gerrymandering, but they never set out to destroy all that had been built up over the decades by democracy.

  15. Democrats are in an unplayable position on the SCOTUS appointment (and many other issues). Their options are to play dirtier than republicans or try to play fair and lose. I think Neil Gorsuch may make a decent justice, but to approve his appointment is to accept Trump and the republican ethical vacuum. The republicans think his appointment will ensure the end of Roe v Wade and anything else they can use him for.

    I think the best outcome for Gorsuch is for his appointment to fail.

  16. Tom, Peggy and Morton; if this is “tongue in cheek” or “sarcasm”, Morton needs to respond himself.

    I find nothing funny about today’s blog or the fear of my own government I am forced to live with every day. I watched about three of the five hours of Comey/Rogers hearing yesterday and was appalled at the number of questions NOT answered (some, I’m sure were due to ongoing investigation); also the sidestepping by some questioners. Indiana Rep. Andre Carson spoke straight out; demanding answers he didn’t get. As did Ms. Spierer from California and one lone Republican woman from Florida who asked; IF Russia made no attempt to cover up their original hacking, what was their reason?

    Sorry; but our mentally unbalanced, immature president governing this country by the Tweet System, is unnerving. He apparently has never had one unexpressed opinion in his life and we are paying for his mental ramblings and play-dates in Florida. I have lost my sense of humor.

  17. Sheila’s view today in re McConnell is incontestable, but lost in all this policial controversy are the real qualifications for this empty Supreme Court seat. Merrick Garland, Obama’s choice for the job, is the Chief Judge of the D.C. Appellate Court, probably the most important court in the country with the exception of the Supreme Court since its jurisdiction includes all federal government and political and regulatory decisions and appeals from district court and its decisions are final unless overturned by the Supreme Court. Academically, both Garland and Gorsuch are qualified for the post but the experience factor comes into play here. Gorsuch has not had the judicial experience in his 10th Appellate Court that Garland has had and is having.

    I understand that there are lots of cases that come before the Supreme Court that are not, strictly speaking, due to alleged executive and/or congressional and/or regulatory overreach, but the fact is that there are many such cases of historic importance that do, and Garland has deep experience in such matters compared to that of Gorsuch.

    Back to the political wars – McConnell in his uncontrolled lust for power and glory is (as Shelia posits) so far into the quest for political power that he has lost whatever understanding he had of what makes America work with his refusal to give Garland a hearing, whatever the outcome. He has demonstrated by his conduct that he is, in words of the street, a political scumbag worse, in many important respects, than the clueless and disturbed Trump who is masquerading as president while still campaigning in a pathetic attempt to mix his adulation fixes with his weekend golf games.

  18. Ken….we’re not talking gerrymandering, nor are we talking two wrongs make a right. Theresa is right…..Morton needs to grow up….no cheap shots on here. McConnell was dead wrong. The hallmark of a bully is doing something because they have the power to do it….right or wrong. If the Democrats don’t stand up to McConnell and Republicans, they’re basically okaying that Republicans can take their lunch money because they can get away with it. Is that how we want government in our names conducted? Better to stand up to them even if the outcome is a bloody nose…..at least they’ll know they had a fight on their hands.

  19. On the evening Obama was celebrating his first inauguration as President of the United States, Mitch McConnell and cronies were having a meeting to determine how to keep Obama from serving a second term. Who was at the meeting? What did they decide to do? Did they do what they decided to do? How many of them went to Jail for treasonous activities?

    One thing’s certain. McConnell did not go to jail. He was not punished for anything, so it shouldn’t come as a surprise that he was quite willing to join forces with Fake President Trump to scuttle Obama’s Supreme Court nominee. As long as he goes unchallenged, he’ll continue to operate in the shadows … or even in the sunlight.

  20. I need help. In my constitution I see no amendment that sez wingnuts get to control the Scotus in perpetuity. What did I miss? They have controlled it for 45 years and by rights should not be in a position to keep control. Ought to be a law against this type of flagrant cheating.

  21. Theresa,

    “Yes, the Democrats have played at gerrymandering, but they never set out to destroy all that had been built up over the decades by democracy.”

    You can’t say it any better than that.

  22. Sheila – I assume that you are complimented by the Marcus comments. Your analogy was brilliant and he has expressed that in the way authors do – with acknowledgement.

    “The ends do not justify the means” is a fundamental principle of American law.
    Thank you for calling it out. The awareness does not make us immune, but recognizing the void where McConnell’s integrity should have been is important. I wonder what Gorsuch would have to say about decision making that leans into winning at the expense of integrity, if he weren’t the winner? That response could certainly sway a vote.

  23. To Marge – Sure, there is something we can do about Trump, Ryan and McConnell. We can vote the Ryan Ayn Rander and scumbag McConnell out of office and impeach (and perhaps indict) the disturbed man sitting in the Oval Office. Meanwhile, we can resist their efforts to continue soaking the poor and middle class so that they have more money to divvy out to Wall Street.

  24. In the Gorsuch hearing this morning, none other than Sen. Lindsey Graham acknowledged that the action of Sen. McConnell in refusing to hold a hearing on Judge Garland forever diminished the process of selecting justices to the Supreme Court.

  25. I think what we are seeing here is not just ideologues in motion. I think most of the executive branch, and a fair number in Congress, are clearly fascists. And I think it is time to start calling a spade a spade, and stop calling it an “extreme right wing conservative”. McConnell is married to, and backed by one of the super rich families behind the executive takeover. Ryan has joined the club, being a long time Ayn Rand fan, he was ripe. The Mercers, with their strange anti-science and pure race beliefs, have placed Bannon, and KelleyAnne, and any number of other choices inside the executive branch. That includes the unfortunate Flynn. The cabal of billionaire fascists, and their generals, may squabble amongst themselves – the Kochs & the Mercers, & the Prince’s for instance – but they are clear on one thing. They want power, and money channeled to their own, and away from “the people”.

    Oligarchs are the human face of fascism. The American brand of fascism also has that peculiar religious overtone of the of the “strong” leaders being god’s chosen, the proof and evidence being their wealth. I don’t think they would nominate anyone for the Supreme Court, unless they knew he (and yes, it would be an older white male) agreed with their philosophy and beliefs. The first step was refusing to advise and consent on any Democratic presidential nominee. The second is to move someone they trust into position. I don’t think you can separate the two issues. They are two closely interrelated moves in the same game. Of the two, placing their man on the court is the most dangerous for average citizens, because he will be there for a very long time. You may well survive an acute injury, and be even stronger after it. But a chronic illness will eventually wear you down. The danger to the executive branch is, as always, that the judge will turn out, in a lifetime sinecure, to follow principles that don’t accord with the oligarchs. But he has been an uber rightist for his whole life. A nice guy. A principled and fair judge. Not many skeletons in that closet. But he will judge according to his deepest beliefs – and those are extremely traditional and conservative.

    I can’t tell you how disturbed I am by my conclusions about the slow insider takeover of significant parts of our government by these characters, many of whom look like they just jumped out of a Dickens novel. I have always scorned conspiracy theories. Mostly because I think primates have a hard time holding a big conspiracy together long enough to get much done. We squabble. But this time it sure looks like, partly by plan, and partly by accident, the fascists have managed to get themselves into a real position of power. If the rest of us don’t resist, and get out and vote in overwhelming numbers, government by and for the people will be lost for the foreseeable future.

  26. GoSuck definitely meets wingnuts first litmus test for Scotus. He is pro-korporate amerika and anti-workers.

  27. Robert Reich had this to say: “Many people asked, bewilderedly, “how did this [Trump] happen?” When I suggest it had a lot to do with the 35-year-long decline of incomes of the bottom 60 percent; the growing sense, ever since the Wall Street bailout, that the game is rigged; and the utter failure of both Republicans and Democrats to reverse these trends – they gave me blank stares”.

    The Republican tactics remind me in a way of the Russian tactics vs Napoleon when he invaded Russia in 1812. As the Russians retreated from Napoleon’s Army, the Russians engaged in a scorched-earth campaign. Once Napoleon’s army began it’s retreat from Moscow, the Russians attacked. The result was Napoleon suffered one of history’s greatest military disasters.

    The Democrats have been in retreat since Bill Clinton was President. They show no signs in reviving themselves. As a Bernie Bot I could understand, Sanders support for Hillary. Since he ran as Democrat he supported the Democratic Nominee. Sanders big mistake since the Trumpet won, is thinking the Democratic Party can be reformed from within.

    The Establishment Corporate Democrats remain in the saddle in the House and Senate Leadership positions and the DNC. One of the most egregious examples of maintaining the Corporate Establishment control the Super Delegates is still in place. The Super Delegates comprise 15% of the convention (712 votes out of 4,763) and they may change their preference at any time.

  28. We cannot have our Senate Democrats do anything but, as Sheila says, “participate in the hearings and demonstrate fidelity to the Constitutional process.”

  29. Dr. Marcus–you were teasing, right? You were with all of us on the bus to Washington before President Obama’s election–the John Stewart/Stephen Colbert gathering–sonyour post today made me chuckle not rage. ?

  30. Marge Wood
    March 21, 2017 at 11:17 am
    “Can we really DO anything about Trump , Ryan and McConnell?”

    To: Marge Wood
    We sure can DO something:
    VOTE on November 6, 2018.
    Join the millions who are going to vote to send Trump/Pence packing.
    And, about Pence, don’t let him fool you with his Mother Teresa grin.
    We need grownups in government.

  31. I wrote to The New York Times and suggested that Senator McConnell needs to recuse himself from any actions involving the Trump administration because of a real conflict of interest: his wife’s position in the administration–Elaine Chao, recently confirmed as Trump’s Secretary of Transportation–makes it inconceivable to me that, by all the expressed standards, there is not a real reason to keep the senator away from anything having to do with the running of the country. He can’t have it both ways. My comment was published online but no-one took any notice.

  32. The Professor was spot on but these comments hit it out of the park! Great blog today. Cheers.

  33. I stick with my earlier comment concerning the comment from Morton Marcus directed at Sheila.

    It was “bullshit.” It diverted the discussion away from taking ACTION. Comedy versus fascism is a cop-out.

  34. Lighten up Marv. And clean up your language. It’s neither helpful or is it respectful of the blog’s author and her readers.

  35. PJ,

    This blog was not necessarily created just for you. Anyway thanks for the input, I’ll take it on advisement.

    I monitor the responses to my comments on this blog through my seven websites. Most all my visitors come directly or indirectly from this blog. Those who comment are only a very small percentage of those who tune in every day. Sheila has a world-wide audience. The day before yesterday when the subject was CRYING WOLF WHEN THERE’S A WOLF, I had approximately 150 viewers who accessed all of my websites by first going to http://www.StandUpToPower.org.

    I doubt they were offended by my language.

  36. PJ,

    I purposely stay away from paying for search engines like Google so that I can clearly calculate the RESONANCE from my comments on this blog. All responses are furnished by GoDaddy with city and country.

    For example, vistitors to my websites from Stockholm, Sweden has been on the rise as of late.

  37. To any of you who are interested, I would highly recommend “On Bullshit” by Harry G. Frankfurt (Princeton, New Jersey: Princeton University Press,2005) p. 63:

    “Bullshit [the word] is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic exceed his [or her] knowledge of the facts that are relevant to the topic. This discrepancy is common in public life, where people are frequently impelled —whether by their own propensities or by the demands of others—to speak extensively about matters of which they are to some degree ignorant. Closely related instances arise from the widespread conviction that is the responsibility of a citizen in a democracy to have opinions about everything, or at least everything that pertains to the conduct of his country’s affairs. The lack of any significant connection between a person’s opinions and his apprehensions of reality will be more severe, needless to say, for someone who believes it his [or her] responsibility, as a conscientious moral agent, to evaluate events and conditions in all parts of the world.

  38. Well Marv, I don’t think you understood Morton’s item. I certainly saw it in a very different light and got chuckle from it.

  39. Paul; Marv isn’t the only one who didn’t get a chuckle from Morton’s comment, the cons far outweigh the pro-Morton responses. Or maybe all of us have lost our sense of humor these days of trials, traumas and bullshit from the government. Funny; we heard nothing back from Morton to support or deny the tongue-in-cheek and chuckle crowd. Still waiting for something from the horse’s mouth so to speak.

  40. Dems better wake up. Harry opened this boxand now we are living with the aftermath, not only is Mitch going to push the button and have Gorsuch go through but it will likely result in another pick going through uncontested within the next 3 years . There is also a good chance that Mich pushes the button on Legislation as well . There are ways to get what you want without looking like you are obstructing. The dems have not learned that and chances are they will loose another 8 senate seats in 2018. Schumer will be responsible for the next 8 years of trump,

  41. Power hungry Mitch O’Connell, shame on you for acting like a bully. You and your cohorts are showing the world what a dictator you truly are. There is no fairness about you! You are truly a dictator. You do not even stand behind your constituents. As you stated, it is all about Power!! It is absolutely your way or the highway.

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