Democrats are Wise Not to Fight Gorsuch

If Senate Democrats succeed in forcing the Republicans to change the filibuster rules to confirm Neil Gorsuch, not only is there another Regressive justice on the court, but if Ruth Bader Ginsburg, Steven Breyer, or Anthony Kennedy are unable to serve while unpatriotic Republicans control the Senate then a Regressive majority will have America partying like it’s 1789.

The Court’s balance then becomes four Regressives, two Moderates, and three Pragmatists, bringing the Court to a dangerous place not seen since the ruling in Dred Scott.

Regressive justices Samuel Alito, Clarence Thomas, and late Scalia all share a judicial philosophy tethered to the late 1700s. In short, they believe in a narrow interpretation of the nation’s founding document based on the original intent of the framers. The best example of their style of ruling can be found in Scalia’s searing dissent in Obergefell v. Hodges.

Scalia plainly ignored the 14^th Amendment when authoring his dissent. A cursory reading of the 14^th Amendment makes clear that all American citizens are guaranteed equal protection under the law. It’s as plainly written as anything from 150 years ago could be. Scalia’s dissent likened the Majority’s dissertation as work of “hippies” while failing to acknowledge the structural inequality existing in a country where heterosexual couples can enjoy all the rights and privileges of legal marriage while homosexual couples are relegated to “Civil Unions” and “Domestic Partnerships.”

Sounds a lot like having to ride in the back of the bus and drink from different water fountains, eh?

Regressives like Scalia believe that unless the Constitution specifically delineates a legal idea, then that idea is to be left to the people to decide. As James Madison wrote in Federalist 51, “If men were angels no government would be necessary.” Since Madison wrote the Constitution, he probably understands it’s intent better than the late Justice. The idea of leaving interpretations of legal rights up to voters is galactically stupid – if it were up to voters, then Linda Brown would have spent her academic career in segregated schools; women would not have the right to vote, and the 13^th, 14^th, and 15^th Amendments never would have been passed.

Regressives fail to understand that people by their very nature are abhorrent, selfish beings who only seek their own advantage regardless of how it affects others. It is legality and morality curbing this impulse. Frankly – anyone who wants to live in a land governed by a Regressive interpretation of the Constitution submits themselves to the tyranny of the voting majority.

Do a Google search on how that’s worked out.

Pragmatists are those who take the original verbiage of the Constitution and apply it to modern issues. These are justices such as Ginsburg, Breyer, Sonia Sotomayor and Elena Kagan but probably the greatest of all Pragmatist justices is Earl Warren.

Reviewing the differences between Brown v. BOE and Plessy v. Ferguson, the essential differences between the two schools of legal thought are most transparent. Plessy is best summarized as “separate but equal” and as long as facilities for both races are of equal quality then the Constitutionality of Jim Crow is justified. That’s a literal reading of the Constitution – nothing in the founding document states “everyone must have equal access to everything.”

Brown upended that ruling using by applying the Constitutional standard of equal protection and summarized beautifully says “separate but equal is unequal”, e.g. two different sets of bathrooms creates a second class of citizenry. That’s pragmatism. In 1789, it was accepted that African-Americans were slaves and their condition wasn’t to change. Until it did thanks to the Civil War and the 13^th, 14^th, and 15^th Amendments.

Ditto for gay rights. The founders never conceived of a world where homosexuals could live outside of the closet. Pragmatic readings of the Constitution apply its values to the world as it is today – not as it was in 1789 as Regressives so yearn for. Obergefell v. Hodges is the perfect example of Pragmatism. The law is applied as written to a modern situation.

Moderates, of course, are those who blend the two schools of thought. The reason why John Roberts and Kennedy are in this category is each authored opinions rankling both sides of the judicial spectrum. Roberts earned the ire of Republicans with his masterful opinion on the Constitutionality of Obamacare.

Now we’re left with Gorsuch. He’s clearly a qualified jurist though some of his notable rulings rightly earn the quizzically raised eyebrow. He’s replacing the strident Scalia. Gorsuch is not as nefarious as Robert Bork and frankly appears more pragmatic than Scalia. That being said, to classify Gorsuch as anything besides Regressive is intellectually dishonest.

Ultimately, Democrats are foolish for dying on Gorsuch Hill. Democrats are gambling that by changing the rules of the Senate that Republicans will have a Pyrrhic victory. That’s not the case. Not when there’s a possibility over the next four years that a Pragmatic justice can be replaced with a psychotic Regressive such as Alabama’s Bill Pryor. If you think Gorsuch is scary – Pryor makes the white-haired Coloradan look like the second coming of Louis Brandeis.

Part of politics is picking your battles.

This battle is not the one for Democrats to fight. Let Gorsuch through – he’ll get a 52-48 vote which will be embarrassing enough – and live to fight another day while praying that Breyer, Kennedy, and Ginsburg have many days ahead of them.