So far, the early debate on Trumpenstein’s SCOTUS pick has centered around whether or not the Democrats will grow a spine and filibuster Gorsuch, and if they do, will McConnell cross the Rubicon and go nuclear on Supreme Court confirmation votes. This is a valid argument, and I believe it is a stand we must make, we have nothing to lose, and everything to gain. It has already been noted that that move from McConnell will only further enrage the Democratic base, and just in time for 2018. But now it turns out that there is at least one compelling reason to keep the court exactly the way it is, at least for the time being.
The Orange Julius made a typical horses ass of himself at the prayer breakfast this morning, asking for prayers for Schwarzenegger’s ratings on “The Apprentice”, among other stupid shit. But then he sounded a serious alarm bell. According to a report in REUTERS;
"I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution. I will do that, remember," Trump told an audience including politicians, religious leaders and guests such as Jordan's King Abdullah.
For those unfamiliar with it, the Johnson Amendment prohibits tax exempt groups such as churches and charities from participating directly or indirectly in political campaigns on behalf of a specific candidate. If they violate the law, they can lose their tax exempt status. Some religious groups, especially during the Moral Majority craze, have always hated the law, thinking it an infringement on their First Amendment rights.
This is not an open hole, or r regulation, Mein Furor cannot just whip out his Executive Order sharpie and make it disappear. It will require legislative action. And that sniveling cur Paul Ryan is already on the record as saying he has always favored ditching the Johnson Amendment altogether.
It is highly likely that if legislation to roll back the Johnson Amendment passed the House, it would run face first into a Democratic filibuster in the Senate. I don’t see this as an issue that McConnell would choose to force his hand to going nuclear for legislation, other than in Trump’s and evangelicals fevered brains this is not that big of a deal.
But let's just say that McConnell drinks the kool aid and pushes the button. Federal lawsuits and challenges will spring up like mushrooms, based on “Separation of church and state” issues. Personally, I find it likely that the courts would find the new law unconstitutional, the Johnson Amendment has been around for 53 years now, without a single legal challenge to it. Recently The Alliance Defending Freedom has urged protestant ministers to violate the law in protest, but it turns out that ministers don’t want to pay taxes any more than the rest of us do.
Let’s say the law is found unconstitutional, this means a trip to the SCOTUS. In its current state, a deadlocked Supreme Court would leave the lower court ruling intact. But if Gorsuch in seated, it becomes likely that the new law receives the blessing of the SCOTUS, and we have even more interference and money pouring in from special interests into our electoral process. The only ray of possible sunshine I can see in this scenario is that Chief Justice Roberts, whose reputation is already tarnished by the Citizens United decision may be reluctant to interject the court and his name into yet another electoral mess, and votes with the liberals on the court.
So yes, it is important for the Democrats to stand firm on the Gorsuch nomination on both his ideology, and their principles, but there are other issues out there that could be very severely impacted by a decisive 5th vote. Keep the heat on every Senator you know to vote “no”.