Sleeping Through the Coup

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February 2, 2017 6:53 PM

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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 Wednesday 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 Scalia-like approach to judicial interpretation( I agree with Judge Posner that Scalia’s “originalism” was anything but). 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.

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, making “throw the bums out!” a toothless threat. Gerrymandering, together with successful vote suppression tactics (aided and abetted by voter apathy and citizen disengagement), has given us a country governed 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—nay, ruled– by people who sneer at the rules of a constitutional system intended to constrain precisely the sort of power they now wield.

America has long 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, office-holders and citizens alike. Senator McConnell’s willingness to place the exercise of raw power above that principle–and to gloat about it– is evidence that these radical usurpers no longer feel it necessary to give even lip service to that foundational principle.

It was the ultimate “F**k 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 sleep-walking through the warning signs, we lost our country.

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