I was right about Neil Gorsuch. This reality is more bitter than sweet. Neil Gorsuch is going to be an extremely problematic Associate Supreme Court Justice for all of us who believe in progressive values like human rights and dignity. He is already flexing his Supreme Court muscles in the worst way possible. In his first act on the Supreme Court, Justice Gorsuch cast the deciding vote to kill a man in Arkansas.
Let that sink in for a minute.
His appointment and confirmation to the Supreme Court literally led to someone’s death. Who knew that a Supreme Court Justice has the power to determine who lives and who dies?
Actually, I did. There goes that bittersweet “I told you so,” again.
Although I plan to spend the rest of my legal career watching the court and calling a Justice like Neil Gorsuch out for their inhumane rulings, we all must remember who is really at fault for the death of Mr. Ledell Lee: President Donald Trump and Senate Majority Leader Mitch McConnell.
Let’s start with Trump, who hails his nomination of Judge Gorsuch as his biggest accomplishment of his first 100 days, when in reality Trump was actually completely incapable of nominating someone that he thoroughly vetted himself. Instead, Mr. Trump took the advice of the Federalist Society and the Heritage Foundation, who handpicked potential justices that would rule in favorable ways for their base, which means gutting Roe v. Wade, expanding Citizens United, and basically destroying freedom, liberty and real democracy for all of us.
Trump did not act alone. He nominated Neil Gorsuch. But it was Senate Majority Leader Mitch McConnell who pulled at the levers of power and manipulated the Senate rules in order to confirm Neil Gorsuch. For decades, Senate procedural rules required nominees to pass a 60-vote threshold in order to be confirmed as an associate justice of the Supreme Court. Recognizing that Neil Gorsuch would never receive 60 “yes” votes from the chamber, in an unprecedented move, Mitch McConnell changed the Senate rules so that only a simple majority, or 51 votes, is needed to confirm a Justice. After McConnell changed the rules, Neil Gorsuch was confirmed in a 54-45 vote.
I know some people are saying that Gorsuch won’t actually shift the Court to the right – he’s replacing Justice Antonin Scalia, who was one of the Court’s most conservative members. And, when it comes to the death penalty, that’s true. Scalia was an ardent supporter of the death penalty. He would even argue that factual innocence doesn’t require a rehearing on a case where a defendant was sentenced to death.
But there’s something about Justice Scalia that many non-attorneys don’t know: Justice Scalia often supported decisions that favored criminal defendants, writing opinions protecting against unreasonable search and seizure, strongly advocating for the right to confront one’s accusers, and protecting the right to a jury trial. Though he and Gorsuch may have seen eye-to-eye on the death penalty, Gorsuch hasn’t shown a similar respect for criminal justice protections.
So there we have it ― 100 days of Trump’s administration has led to at least one execution at the hands of his Supreme Court pick. Things seem pretty bleak, but there is an important thing that we should continue to celebrate: us! We made it. I do not look forward to watching every move made by this Presidential Administration, the Congress with a Senate led by Mitch McConnell or a Supreme Court that includes Justice Gorsuch, but I will still watch. We must stay awake and resist so that we can put people on the court, in the Congress and in the White House that won’t sentence people to death. I know that a day will come when we can democratically put wise and compassionate people into the seats of power. I won’t stop fighting until that day comes. And, when it does, I will then fight to preserve true democracy.