Senate Democratic Leader Chuck Schumer recently made ugly threats against Supreme Court Justices Neil Gorsuch and Bret Kavanaugh as the Court was hearing an abortion rights case. What prompted him to do so? And are there other, more constructive means of opposing Supreme Court decisions?
“I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” So said Chuck Schumer at a recent abortion rights rally held near the Supreme Court building.
Republicans have been having a field day criticizing Schumer. Some are even contemplating his censure. And even some of his fellow Democrats, as well as their usual allies in the media, are saying Schumer went too far. They note that President Trump has made plenty of boneheaded remarks about federal judges and Supreme Court justices himself, the most latest of which has been his demand that Justices Ginsberg and Sotomayor recuse themselves from any cases involving him. But they also note that Trump is well within his legal rights to seek recusal (which is rather different from actually achieving what he wants), and that his remarks, however ill-advised, contain no threats.
Schumer also denies his remarks were threatening, but his words obviously belie his denial. And his chief of staff has compounded Schumer’s dishonesty with his own attack on Chief Justice John Roberts. Responding to Schumer, Roberts said, “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job, without fear or favor, from whatever quarter.” Schumer’s chief of staff said, “For Justice Roberts to follow the right wing’s deliberate misinterpretation of what Senator Schumer said, while remaining silent when President Trump attacked Justices Sotomayor and Ginsburg last week, shows Roberts does not just call balls and strikes.” But as one of President Trump’s fiercest critics notes, “Roberts has spoken out against Trump’s demeaning of the judiciary. In November 2018, after Trump criticized an ‘Obama judge’ who had ruled against Trump’s administration, Roberts responded that there are no ‘Obama judges or Trump judges, Bush judges or Clinton judges’ but, instead, ‘an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.’ You can check out this article in its entirety here: https://www.washingtonpost.com/opinions/2020/03/05/george-conway-schumer-oped/.
So why did Schumer say what he said?
Part of the explanation may be his frustration, and that of Democrats in general, with President Trump’s success in reshaping the federal judiciary to make it more conservative. Trump has not only appointed Gorsuch and Kavanaugh to the Supreme Court, but he’s also appointed numerous appellate and trial court judges as well, most of whom will be around long after Trump heads into the sunset.
Also, Schumer’s outburst may reflect the growing intolerance within the Democratic Party for any view other than that abortion should be made available any time, at any stage of pregnancy, on demand and without apology. Bill Clinton used to say that abortion should be “safe, legal, and rare (emphasis added)”, and Schumer himself said, only a few years ago, that his party should be open to electing anti-abortion Democrats to the Senate. But those days when Democrats thought abortion should be “rare” and that there was room for abortion opponents in the Democratic Party are long gone.
Besides, it’s possible that AOC may challenge Schumer for his Senate seat in New York’s 2022 Democratic primary. If so, Schumer may well believe that a sharp lurch to the left on abortion may minimize her chances of ousting him.
But part of the explanation may have nothing to do with Schumer or the Democratic Party at all, yet everything to do with the power we have allowed the Supreme Court to assume in the political system.
Throughout its history, and especially in recent memory, the Supreme Court has, through its rulings, had a profound impact on public policy development in America: Racial desegregation, the alleged discovery of abortion rights, and the legalization of same-sex marriage have all owed more to Supreme Court decisions than to legislative action. Moreover, by ruling on these issues, the Supreme Court has effectively reduced the possibility that they can be refined by the efforts of democratically elected legislatures.
Yet history shows that the public and its representatives in government will not acquiesce in Supreme Court pronouncements that seek to end debate on controversial issues. Rather, effort that could have been spent on discussion, deliberation, and the search for consensus and compromise on important issues is directed at trying to effect the processes by which Supreme Court justices are selected, as well as to influence judges and justices once they run the gamut and take their seats. Hillary Clinton and Barack Obama, as senators, filibustered. Senate Republican Leader Mitch McConnell blocked an Obama appointment to the court. Senate Democrats practiced the crudest forms of character assassination against Clarence Thomas and Bret Kavanaugh, while continuing to raise the con tenuous possibility of impeaching them. Schumer’s threats are merely another tactic in an ongoing campaign by both Republicans and Democrats alike to shape the Court and its decisions.
Actually, the Framers of the Constitution provided a remedy for those who dislike the work of the Supreme Court—Amend the Constitution itself. The main way they prescribed, requiring the support of two-thirds of each house of Congress and three-fourths of the states to add amendments to the Constitution, is cumbersome, and offers no guarantee of success. But trying to amend the Constitution would at least promote healthy debates in legislatures throughout the country. Surely debates among the people and in their legislatures would be far more constructive than the parliamentary chicanery, character assassinations, presidential inanities, and Chuck Schumer’s naked thuggery.
Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present). He was Mayor Pro Tem of Stephenville from 2008 to 2014. He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.