Strategy in the Age of Trump: Battle for the Supreme Court

As the United States experiences its fifth week with President Trump at the helm, early speculationabout the durability of our democratic institutions has spurned action from many, with concerned constituents targeting their elected officials in the Senate demanding they oppose many of the President’s actions. Chief among them have been his selection of a cabinet of misfits; a public education secretary with no experience in public education; an oil executive as Secretary of State, and right-wing propagandist Steve Bannon as chief strategist, elevated to a position on the National Security Council (perhaps the bungled result of an oversight).

The installation of people to key positions in the administration who lack experience in government and have baldly conflicting interests is concerning, and represents a unique challenge. Much of the business of governing occurs by tacit agreement to operate within established norms. During the Obama administration, Republicans carried out an obstructionist agenda, going so far as to allow the government to shut down in one maneuver, hijacking government functionality for political gain. President Trump, just five weeks into his presidency, has shown indifference toward the longstanding traditions of deliberation in government, isolating himself from experts and preferring to make snap-judgement decisions with little oversight, inciting chaos and disruption by his executive decrees.

In this environment of uncertainty, Democrats have tended to cooperate, confirming most of Trump’s cabinet nominees to the chagrin of many of their constituents; despite disagreement, they do not want to be viewed as employing the same tactics which they have previously opposed. In this context, debate has arisen over whether Democrats should merely accept President Trump’s nomination of Neil Gorsuch to the Supreme Court, or not. The Solicitor General under Barack Obama, Neal Katyar, has argued that liberals should accept President Trump’s nomination of Neil Gorsuch for his eminent qualifications and the likelihood that he “will not compromise principle to favor the president who appointed him.” Some Senate Democrats coming up for reelection have been reluctant to support a filibuster, which would impose a sixty-vote threshold in the senate to confirm him. Senate Majority Leader Mitch McConnell and White House Press Secretary Sean Spicer have repeatedly remarked that such a filibuster would represent an unacceptable departure from the norm.

Republicans have fundamentally altered the rules of the game, however, by refusing, for an unprecedented 294 days, to hold a hearing on Merrick Garland’s nomination, and it is unlikely that a seamless confirmation of Neil Gorsuch would incentivize Republicans to cooperate in the future. Moreover, the GOP have signaled, through constant obstructionism, that their strategy is to “always defect” — in the parlance of game theory — rather than cooperate on issues in the short term. Denying the disruptive effects of Republican obstructionism to the norms that typify democratic governance belies a worse problem. Democracy is on the decline globally, and, as Andrea Kendall-Taylor and Erica Frantz of the Washington Post report, evidence also shows that autocracies tend to maintain some aspects of democratic institutions “to enhance the durability of their regimes.”

As President Trump continues to assail the public with his rampant lies, while Republicans refuse to put the long-term interests of our society over their own short-term political goals, the role of the public as a political force becomes paramount to maintain the integrity of our democratic institutions. The Democrats should oppose the nomination of Neil Gorsuch to the Supreme Court for it being the illegitimate result of political machination. Having lost the popular vote by millions, Trump does not hold a mandate to swing the court in a conservative direction.

Now, after weeks of witnessing how Trump handles inquiries and facts, our website and Twitter are dedicated primarily to targeting Senate Democrats, and encouraging them to oppose the nomination of Neil Gorsuch on the grounds that it matters that the nomination was stolen, and it should not have been.

At SCOTUSletter.net, you will find contact information for all US Senators, and a printable form letter (ready for post with no envelope needed) requesting that Senate Democrats remain steadfast or join their colleagues in opposition to confirming Neil Gorsuch, or any other nominee to the Supreme Court who is not Merrick Garland or does not possess a similar record of being a moderate. You will also find links to follow us on Twitter and share the site with your followers.

Democratic Senators who have shown an unwillingness to filibuster and need some encouragement include Senators Chris Coons (DE), Richard Blumenthal (CT), Joe Manchin (WV), Dick Durbin (IL), Heidi Heitkamp (ND), Claire McCaskill (MO), Jon Tester (MT), Joe Donnelly (IN), and Jeanne Shaheen (NH).

Senators who have either vocally opposed or expressed a willingness to filibuster the nomination include: Sherrod Brown (OH), Ron Wyden (OR), Jeff Merkley (OR), Ed Markey (MA), Elizabeth Warren (MA), Senate Minority Leader Chuck Schumer (D-NY), former Senate Judiciary Chair Patrick Leahy (D-VT), and Senator Bernie Sanders (I-VT). Their comments can be found here. It is crucial that we show our support to these Senators, and try and persuade others to join them.

We demand a moderate SCOTUS nominee be put forth, to ensure the deliberation that is an essential feature of our democracy, and resist the deliberate hijacking of government institutions for the exploitation of right-wing political gains. The decisions being taken in the first few weeks of the current administration are already having extreme effects and will carry a lasting impact into the future. We all have an obligation to #ResistTrump.

Our campaign continues to evolve with changing political realities, and we encourage everyone to get involved. You can find us tweeting about this critical issue from our own account, here.

A version of this op ed is featured here.

Why SCOTUS Letter

President-Elect Trump does not have a mandate to build a conservative court, and we want him to know that.

As the initial shock of the 2016 presidential election fades into collective anxiety and a widely shared impulse for political engagement, the vacated seat of conservative Supreme Court justice Antonin Scalia has garnered special attention as a contentious political matter. In March, President Obama nominated Merrick Garland, a well-qualified and unimpeachably moderate judge, to the bench as a replacement.

However, Senate Majority Leader Mitch McConnell quickly and vocally rejected the prospect of confirming Garland or any nomination brought forth by the current President, in an unprecedented move that broke with key norms and sparked lively debate. At issue, has been the interpretation of language in Article 11, section 2 of the Constitution, and whether, or not, the Senate is obligated to take formal action by holding a hearing on Garland. Some have maintained that the President has a constitutional responsibility to appoint his nominee in the face of Senate inaction,[1] while others have argued that the Framers intended for the Senate’s responsibility to be interpreted broadly, evidenced by a history of “consistent practice.”[2]

After waiting longer than any nominee in US history for a confirmation hearing, Merrick Garland has joined the very short but distinguished ranks of unconfirmed nominees, and returned to work as the chief judge of the US Court of Appeals for the District of Columbia. McConnell has justified his obstinance by saying “the American people should have a voice in the selection of their next Supreme Court Justice.” Yet, if the Senate has seemed passive in its resistance to offer formal advice, other groups, including the conservative Federalist Society, have aggressively pressed for the nomination of a justice with an originalist interpretation of the Constitution.

McConnell falsely claims that a precedent exists for refusing to confirm a justice during an election year, and we reject the idea that the incoming administration holds a mandate to select a nominee whose interpretation of the Constitution would be likely to jeopardize basic human rights protections. Rather, we aim to heed the Senate Majority Leader’s insistence that Americans get their say, and have launched Scotus Letter to send the message that a moderate justice would best serve the interests of all Americans. Installing a moderate in the Supreme Court would ensure the integrity of the deliberative process at a time when US democratic norms, institutions, and progressive gains appear to be at risk.

The idea for #ScotusLetter was born out of a sense of urgency, during a post-election phone call, and has come to fruition as a platform for advocacy. We make it incredibly simple and straightforward to make your voice heard. From the Letters page, with one click you can download a form letter that is pre-addressed to the White House, and can be printed, folded, and mailed with no envelope required.

Mailing a letter in hard copy is useful for several reasons. For one, it goes straight to the White House mailroom, where written letters can have an impact. The address line of our form letter contains the line “re: nomination of a moderate Supreme Court Justice,” increasing our visibility, and we have included a space to dedicate the letter to a person or cause.

Additionally, the scotusletter.net website is linked to the White House Facebook Messenger and online portal of President-elect Trump’s transition team. We provide a short sample text that can be copied, modified, and pasted directly into the links, making it easy to send a direct message electronically.

In our latest website update, we have also uploaded contact information for all US senators, highlighting members of the Senate Judiciary Committee upon whom it is incumbent to take formal action regarding Supreme Court nominations. We have included a basic sample script to follow as a guide to make calling easy. Going forward, we will continue adding more ways to advocate for the confirmation of a moderate justice.

We need to be visible, and loud. Follow us on Twitter, Instagram, and Facebook. Snap a pic of your letter and tweet it at us. Share this campaign with individuals or groups who will be directly affected by upcoming Supreme Court decisions. Encourage your friends in other states to mail their own letters and call their own senators. Share this post among your networks. Print a stack of SCOTUS Letters and leave them in your office, next to the stamps.

The Supreme Court will see more vacancies in the coming years, having far-reaching, long term impacts on critical issues. As we witness institutions threatened with disarray by irresponsible appointments being made during this transitional time in our country, it is essential to hold our leaders accountable and send the message that the integrity of the Supreme Court must be guarded.