You probably have a better chance of becoming a judge in China without being a Communist than you have of making it to the Supreme Court under Republicans without the support of the hard-right Federalist Society.
Neil Gorsuch, Trump’s nominee, has passed this test. His name reached the president via Federalist Society vice president Leonard Leo, who also led the campaigns to name John Roberts and Samuel Alito to the High Court.
The Federalist Society may be the most powerful right-wing organization you’ve probably never heard of. Founded in 1982, they have been bankrolled by reactionary billionaires like the Koch Brothers and Richard Scaife to reshape the American judiciary to support their pro-corporate, anti-middle class agenda.
The Federalist Society believes “the easiest way to change the law is to change the judges,” and they have been phenomenally successful in doing so. Every Federal judge appointed by both President Bushes was either a member of, or approved by, the Federalist Society. The same is true of Supreme Court Justices Roberts, Alito and Thomas, and the late Justice Scalia. So it comes at no surprise that Gorsuch’s nomination was hatched in their laboratory.
Like Roberts, Neil Gorsuch may have top academic and professional credentials, be a skilled legal writer and conversationalist, and look like Jimmy Stewart. But beneath his amiable veneer, he is a dedicated champion of the Federalists’ Koch-funded, pro-corporate legal agenda.
The Federalists’ Agenda
What are some of the Federalist Society’s greatest victories in moving the law in a pro-corporate direction?
Citizens United, which held that corporations are persons with the same First Amendment rights as actual people, and that unlimited contributions by billionaires and corporations to Super PACS, often run by a candidates’ family members and former top campaign aides, are not corrupting.
This case was argued before the Court by Federalist Society luminary Ted Olson, and backed by the four Federalist Society Justices on the Court, Roberts, Alito, Thomas, and Scalia.
Shelby County v. Holder, which overturned the provisions of the Voting Rights Act which had required that states with a history of racial discrimination receive pre-clearance from the Justice Department before changing their voting laws.
The Shelby ruling has unleashed a flood of voter suppression laws throughout the country. it was likewise backed by the same four Federalist Society Justices and fulfilled a decades-long goal of the Federalist Society to undermine voting rights going back to the Reagan administration.
Vieth v. Jublirer, written by Federalist Society leader and Gorsuch mentor Antonin Scalia, ruled that partisan gerrymandering in which elected officials can pick their own voters is Constitutional.
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The result is multiple cases in which one party (usually Democrats) receives a majority of the popular vote, but the other party (usually Republicans) ends of with a majority of Congress People or state legislators.
Burwell v. Hobby Lobby, in which the Court ruled that a for-profit corporation can deny contraceptives to women under their health insurance policies if contraception violates the religious beliefs of the corporation.
The Federalists’ Man
Notably, Judge Gorsuch authored a concurring opinion on Hobby Lobby even before the case reached the Supreme Court. As this and his other opinions make clear, The Federalist Society can count on him to advance its pro-corporate, anti-civil rights agenda if he’s confirmed for the Court.
If Gorsuch is confirmed it may not be long until he joins, or even leads, Federalist Society-supported decisions which would make it much easier to overturn environmental regulations and regulations protecting workers’ rights.
The vote on Gorsuch is the most consequential vote that’s likely to come before the current Congress. Senators serve for six years. A young justice like Gorsuch could spend thirty to forty years helping overturn laws protecting the environment, workers, minority groups, and women.
What Is To Be Done
Republicans have a rule: They won’t appoint a Justice who’s not affiliated with the Federalist Society. Democrats should have an equally firm rule: they won’t confirm a Justice who is affiliated with the Federalist Society.
Gorsuch’s impact will last for decades, long after this Congress is no longer in session. There can be no backsliding allowed for wavering Democratic Senators.
Over the next few weeks, groups must take demonstrations to the homes and offices of wavering Democratic senators, and to the home and office of Senate Minority Leader Chuck Schumer to insist he enforce party discipline, rather than blithely let Democratic senators go their own way.
And if Democrats lack the backbone to oppose Gorsuch, the rest of us should make it clear that they will face primary challenges to their reelection if they fail to do so.