The Bodyguard

Context is Important

Critics of the Second Amendment like to take it in isolation.  For example, they like to pretend that it only covers muskets.  They like to suggest that it is only for a militia.  And they love to suggest, time and again, that our forefathers could not ever have imagined automatic weapons.  All of these arguments are patently silly as anyone who knows any history at all knows well.  But perhaps the most important thing about this revisionist history view of the Second Amendment is that it ignores its placement in the Constitution, and also, its true purpose.

Primacy is the concept that we mention what is important to us first.  So if we ask someone where they might like to go to dinner, and we hear “Outback Steakhouse, or maybe Chipotle,” we can be pretty sure their first choice is the first one they mentioned.  There is no reason to believe that this bedrock psychological principle did not apply in 1779.  So we can assume that the very first thing that our ancestors sought to enshrine with Constitutional protection was the right to freely associate and speak freely on any subject.  Justice Brandeis said:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.

 

Whitney v. California, 274 U.S. 357, 376 (1927).  In other words, the founding fathers sought to establish that ideas are the coin of the realm, and that public discussion is a good thing, even if it upsets the few (or the many).  Ideas spur change, and without change, growth cannot occur.

A Bodyguard for Truth

During the middle of World War II Winston Churchill said “in wartime, truth is so precious that she should always be attended by a bodyguard of lies.”  Churchill enjoyed great favor for winning that war, but over time his country turned on him, replacing him with folks far more liberal.  Sadly, that trend has continued to the point that Britain today is beginning to look a lot more like pre-war Nazi Germany that post-war Britain.  Consider these current issues reported by the news:

  • The Director of the Crown Prosecution Service said “People all over the world are questioning how those in positions of power can counter the kinds of extreme views that are increasingly being aired,” she wrote, “and how societies might do more to prevent such opinions from gestating in the first place.”
  • The British Secretary of Defense, Gavin Williamson, created a “National Security Communications Unit” and its goal is to track down and stop internet trolls. But, who decides what is trolling, what is offensive, and what is not?
  • A British celebrity, Ursula Presgrave was found guilty in London of “malicious communication.” Her crimes? To have written on Facebook some rather awful things about the disabled and having memes on her phone that mocked the disabled.
  • And then there’s this: American’s detained because of a planned (not GIVEN, but PLANNED speech that MIGHT upset Muslims)

In other words, the thought police have been given free rein in Britain to go after offensive speech.  But, in this effort to stop material obviously in bad taste, as above, it has also been given free rein to attack that element of society that tells the truth about things like the nations of Islam, and their brutal treatment of women and gays.  Have opinions that go against the ridiculous notion that Islam is a “religion of peace?”  Well, you are not going to get away with that!  Criticizing this protected religion in Britain could, if you were caught, result in a prison sentence.  Why?  Because Britons don’t want to offend Muslims.

Whatcha Gonna Do…

How can Britain get away with this?  Easy.  The Brits have surrendered their firearms.  The populace is easily contained.  If you don’t like things, for God’s sake don’t complain about it out loud there.  You’ll go to jail.  It is exactly the kind of mindless abuse of government authority that resulted in the American Revolution.  And, its worth noting, once again, its based on religious persecution … of Christians.

In the U.S. Constitution, the truth expressed in the free exercise clause of the First Amendment, also has a bodyguard.  That bodyguard is the Second Amendment.  It is there to protect every American’s right to be armed, to be a citizen, not a subject, to have a lawful voice in government and even to speak hateful ideas.  No one likes the Westboro Baptist Church, and even extreme fundamentalists do not endorse their views.  But the Supreme Court protected their right to protest at funerals of service members, not because the court agreed with them, but because to preserve the right of free speech for all, it must be preserved even for those who would abuse the truth and offend the whole of us.

The American Ideal

Hate speech, online speech codes, rules of propriety for college students, and the like are anathema to the American ideals.  Justice Brandeis said this:

They [the founding fathers] recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced.

That this is enshrined in American law is what prevents the overzealous from trouncing the rights of the many in order to avoid offending the sensibilities of the few.  Simply put, the rights enshrined in the First Amendment would be meaningless without the Second:

Me:      Islam is evil!

State:   You can’t say that!

Me:      First Amendment

State:   We won’t let you say that!

Me:      Come and stop me!

The last sentence only has force because the state knows it cannot stop me, because I am armed, and because the Constitution protects my right to petition for redress of grievances as well as oppose unlawful force used against me.

This is what the anti-NRA crowd never understands: it isn’t all about the Second Amendment.  It is about all of our constitutional freedoms.  We are only one gun-confiscation order away from a totalitarian state.  And as long as we have the means and will to resist this kind of government encroachment, we remain a free people.

The moment we lose that right, we’re just slaves.

 

 

 

Hate Speech

 

There is an oft circulated meme that goes something like “when a conservative doesn’t like guns, he doesn’t buy one; when a liberal doesn’t like guns, he tries to ban them.” This is a very telling meme because it highlights the differences between conservative and liberal thought.

A perfect example can be found at Auburn University in Auburn, Alabama.  Although it is often suggested that people in the south are inherently racist, I’ve found the opposite to be true.  In fact, race relations are a lot more honest there.

Little Richard Spencer

Auburn recently agreed to provide Richard Spencer a forum to speak in public on his rather ridiculous theories about race and religion. Although sprinkled with lofty-sounding words and scientific-sounding jargon, the policy views expressed in the “Research” section by the National Policy Institute are simply wallpapered garden-variety racism, sexism, and religious antagonism. They sound cultured, but then again, a guy with a M.A. would sound that way while trying to woo the stupid with the siren song of hate.

I won’t debate Spencer’s theories, and I won’t dignify them with exposition. They belong locked in a long-sequestered cabinet that contains Dred Scott, Plessy v. Ferguson, and the predecessor cases of Loving v. Virginia.

However, as you might imagine, when someone with lofty language and a decent suit stands up and starts spouting rhetoric that would make Hitler proud, the kooks, fringe elements, and haters of all stripes show up to have their prejudices catered to and to perhaps engage in a little physical violence with counter-demonstrators.  Conservatives see this and think “I’m going nowhere near that mess.”  Liberals have a different approach: speech you don’t agree with must be stopped.  How moronic.

Fueling the Fire of Hatred

When Spencer announced his little event at Auburn, it had the intended effect. Screwballs, tin-foil-hat wearing nut balls, conspiracy theories, and racists of only one color but in many sizes signed up. The event drew rebuke from the intelligentsia at Auburn, and a move was made by the student body to prohibit his event. This, of course, was right what old Mr. Spencer wanted. He wanted, not a forum, but a confrontation with liberals that would fuel his fire of hatred.

Auburn, committed to the ideas of free speech, said that the speech would go forward, but the damage had already been done with calls by liberal students to “shut down” Spencer’s rhetoric.

The Wrong Move

Now, again, I’m not suggesting that anyone who wasn’t interested in fecal-stained semen samples would derive anything from a Spencer rally, but shutting down the speech was exactly the wrong move to make by the students, because Spencer riled up the crazies and they started calling and making – you guessed it – death threats.

So, the natural consequence of that is that the Auburn Police said “uh, not on our watch, thanks just the same,” and they prevailed on Auburn to pull the permit.

Keep in mind now, the permit was pulled not because Spencer is an awful person with awful views that ought not to be expressed, but rather, because his followers and their illegitimate spawn threatened violence (and of course, the students were not about to back down). But the students had done the damage by suggesting that what Spencer said was hate speech, and Spencer went to court to complain about being denied the right to use a public forum on the basis of the content of his speech. If Spencer prevails in his action for injunctive relief, the students who raised the issue and sought to prohibit his speech will have earned their just desserts.  They will, by suggesting his speech be shut down because they disagree with his policy views, wind up achieving the very result they sought to preclude.  And more importantly, they will put lives at risk.

What is Hate Speech, Really?

Speech that goes against traditional American values is often thought of as loathesome. It may be, but it isn’t always ‘hate speech.” Take, for example, Westboro Baptist Church, that fine group of upstanding Christians who apparently skipped that part of the Bible about “turn the other cheek,” and “love one another” and instead latched on to the darker Old Testament fire and brimstone scriptures as the basis for protesting the funerals of fallen servicemen and women. How loathsome is it for someone to inflict their political speech at a time and place where families will be personally insulted and hurt by the speech?

It’s pretty damned bad. But the Supreme Court has upheld their right to do it. It’s awful. But the fact is that if the Supreme Court did not act in this manner, then other speech that is controversial – and perhaps speech we care a great deal about – could just as easily be limited and marginalized. So we tolerate speech we find offensive and loathsome so long as it does not physically endanger people. Some speech, because it endangers the public, is not protected under the First Amendment. This is the old “don’t scream fire in a movie theater” rationale provided by Justice Oliver Wendell Holmes in Schenck v. United States, 249 U.S. 47, (1919). Schenck defended an espionage conviction on the First Amendment. It was a bad move, and Judge Ollie didn’t much like it.

Not Fire in a Theater

But those who want to equate what Spencer does, and what Westboro does, with screaming fire in theater simply do not grasp the situation. In the fire situation, lives are immediately imperiled, not so much by the truth or falsity of the speech, but by the reaction to it and the risk of harm from panic and overreaction. In neither Spencer’s case nor Westboro’s case is the speech actually liable to cause immediate harm to another person (other than, perhaps, to distort their view of the world). Under the First Amendment only time, place and manner restrictions are allowed.

The Solution

If the issue is the loathsome nature of the speech, rather than the likelihood of immediate personal injury, then the solution to this loathsome speech is not protest (which merely empowers the speakers), but rather, to actively encourage others not to go, to ignore the speech, and to try to pressure the media to ignore it also. The approach works because it eliminates the motivation for both the speaker (increasing his media exposure and street creds with his “people”) and the crowds that want to hear him (discovering you’re one of ten people who all look like they stepped out of Central Casting for a remake of Deliverance should be pretty devastating).

If you stop giving the megalomaniac a platform, and you stop favoring him with sycophants who might otherwise not find him, then nature takes its course and the miscreant takes his hateful message somewhere else.

Conservative v. Liberal Redux

So, again, conservatives won’t go hear Spencer because (a) we’re not stupid; (b) we’re not homophobic; (c) we don’t wear tin-foil hats; (d) we don’t believe Jews control the world; and (e) we understand that in the world of the racist, ignorance is the coin of the realm.

Liberals, however, react by (a) threatening the speaker; (b) pressuring the school to shut down the speaker because of, or in reaction to, the speaker’s message; and (c) try to effectively “ban” hate speech by banning speakers.

But hate speech is zombie speech – it never dies. There is always going to be someone out there with a theory, a belief, or a set of doctored photographs that will convince the ignorant that their life would be better if they just hated the right people.

In the fabulous movie The Blues Brothers, Dan Ackroyd and John Belushi made great fun of the “Illinois Nazis” and that is exactly the best approach to hate speech. Make fun of it. Lampoon it. Point and laugh, shake your head, and shame them. When people who follow the idiot speakers that spout this drivel, you’ll see them self-shame. They never use their real names in comment sections; they never take ownership of their “beliefs” under their true names because they are inherently ashamed of who they are and what their views represent.

In the end, that is the greatest victory that truth and justice can achieve over people who want to turn America into a place of hate.

God Bless America.

 

Hively is Wrongly Decided

 

Judge Wood and Judge Posner of the Seventh Circuit have, in the Hively case, adopted a new paradigm for the interpretation of statutes. The opinion and Posner’s concurrence essentially adopt the idea that a statute must be interpreted today the way it makes the most sense today. In other words, where discrimination on the basis of sex forbids discrimination against women or men, it also forbids discrimination on the basis of sexual orientation.

This interpretation should trouble you. Indeed, that it should even find a small squeaky voice in the federal appellate courts ought to send a cold chill up your spine. Like moral relativity, judicial temporal relativity is a solution in search of a problem. If statutes are out of date, the proper remedy is to get the legislature to fix them. The proper remedy is not, as the Seventh Circuit has done, to invent a new paradigm of judicial interpretation “giving a fresh meaning to a statement … that infuses the statement with vitality and significance today.” (slip op. at 25)

Let’s look at what the good judge says. First, he acknowledges that the meaning of the term on account of sex was understood to mean gender, not sexual orientation:

 

Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted. But I need to emphasize that this third form of interpretation—call it judicial interpretive updating—presupposes a lengthy interval between enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.

And a little later he says:

 

Title VII does not mention discrimination on the basis of sexual orientation, and so an explanation is needed for how 53 years later the meaning of the statute has changed and the word “sex” in it now connotes both gender and sexual orientation.

Yes, Judge Posner, please explain this. Because the words used in 1964 had defined meanings and every Congress since then has had the opportunity to amend and change those words, including in 1993 when the Americans With Disabilities Act was passed to update the Civil rights laws. But, no, the good judge impugns Scalia with his pen:

 

A diehard “originalist” would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute.

But as I noted earlier, statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning. Think for example of Justice Scalia’s decisive fifth vote to hold that burning the American flag as a political protest is protected by the free-speech clause of the First Amendment, provided that it’s your flag and is not burned in circumstances in which the fire might spread. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word “speech” in the amendment embraced flag burning or other nonverbal methods of communicating.

 

In other words, we’ve gotten away with this in the past, we should get away with legislating from the bench again. If Congress won’t act, we’ll be the conscience of the country. That would be all and good if you were elected and accountable, but you’re not Judge Posner. You’re not!

It may seem like a victory for gay rights to say that sexual orientation is now covered as a basis for sexual discrimination. But what it really means is no one will be free so long as a judge is allowed to take a mulligan on what a statute means “today.” Today homosexuality is tolerated well in society. But what about tomorrow when a right wing religious zealot claims the Oval Office.  Change is one constant in our society.  Requiring changes to come through the traditional method of legislative enactment is sound public policy.

Understand please, I mean and intend no ill will to gays and lesbians by suggesting that this opinion is an abomination and that the judges should self-flagellate, burn their robes and wash their hands with Lysol. Because the issue of homosexuality is a matter of personal choice and personal freedom and people can be who or what they want in this country. No one should be discriminated against because of whom that person chooses to sleep with at night. And, that’s not the point of this missive. The point is, the standard for judicial interpretation of a statute, because the closer we move to that standard for legislative enactments, the closer we come to the possibility of “re-inventing” the Bill of Rights to include or exclude certain long-held and long-established rights.

In the offices of Anytown and Gunsense today, they are leaping up and down cheering this novel approach because it validates one of their primary talking points: the founders could never have anticipated AR-15 assault rifles, therefore ban them and criminalize possession. It’s “common sense gun reform” to “give a fresh new meaning” to infuse the Second Amendment with “vitality and significance today.” You can almost hear all those Washington lawyers now putting pen to paper and making these same arguments.

But, why stop with just the Second Amendment. Maybe the Fifth Amendment needs to be updated. Let’s include not only speech from self-incrimination, let’s include documents you authored as well. And why have that pesky notion of a jury trial. Can’t judges decide quicker and move cases along faster? Yes, we can update and improve efficiency.

If there was ever an opinion written that practically shouts from the rooftops that we need Judge Gorsuch on the SCOTUS bench, this one is it. We cannot allow, under any circumstances, Judge Posner’s temporal judicial relativity (or perhaps his “extreme justice makeover”) to be written indelibly into the law of the land. This madness must be found in its crib and strangled before it emerges with a bludgeon and destroys the foundations of American jurisprudence.

Legislating from the Bench

Activist Judges

When Jose goes into traffic court and offers, as his defense, that everyone else was going 35 in the 25 mile per hour zone, the judge listens patiently before pronouncing him guilty. He does this because 25 miles per hour is a pretty clear line. The sign says “speed limit” it does not say “speed advisory.” In traffic court, no judge legislates from the bench. They simply enforce the law. The rules are clear. The public policy is there to keep people safe.

Judging usually involves clear rules, like speed limits.  You read the text of the rule.  You apply the rule.  End of discussion.  You were clocked at 35.  Speed limit is 25.  You are guilty.  Next case!

Now, flash forward a few years. Jose is pulled over for speeding again, but this time the officer smells something like burning leaves in the car and spies the remnants of a hand-rolled cigarette in the ashtray. Jose is sweating. He tells the officer he knows he was speeding and is willing to take the ticket. But the officer wants to search, and Jose doesn’t want that. So the officer calls a canine unit that hits on the car, and Jose is arrested for that 60 pound duffle of dope in his car.

Now, the mere fact that Jose is speeding is not probable cause for a search. The officer’s suspicion, based on smell, is not sufficient. The suspect’s refusal, standing alone is not sufficient. But combine all of that together, and you have reasonable suspicion that allows the dog to sniff the car. When the dog hits, that’s probable cause, and the rest is history.

Except, here is where the judges start legislating from the bench. The search can be declared unreasonable based on facts that the trial judge found reasonable. Of course, sometimes these exceptions are overturned by the next level of appellate review. This is how the law works. But a great deal of criminal law and public policy is made by appellate court judges, often without a lot of thought as to the consequences of those decisions on police and the general public.

If it stayed on the criminal law side, that would be fine.  But it does not.  I transfers over to the constitutional rights of all Americans.  And it is an absolute outrage that judges that take an oath to support and defend the Constitution, believe they can pick and choose which parts of it they support and defend.

Say what?

Courts tend to be very protective of rights under the First, Fourth, Fifth, and Sixth Amendments to the Constitution. However, the Second Amendment often gets not just short shrift, it often gets shredded by appellate courts that simply refuse to acknowledge that it means what it says.

The First Amendment protects free speech, and the Supreme Court in its wisdom has extended that protection to “symbolic speech” like flag burning and putting Jesus in the bottle of urine. In so doing it expands upon and broadens the traditional protection granted by the Amendment. No one has ever been able to explain to me how there can be “penumbras” of the Constitution that can be divined to exist and protect privacy (when that was never an issue in 1779) and yet, the plain words of the Amendment can be ignored in favor of a public policy that is based on a bunch of judges losing bladder control when they see a firearm.

The recent Fourth Circuit decision upholding Maryland’s assault weapons ban is just one example of exceptional judicial legislation that has no textual support in the Second Amendment, and is premised on a complete lack of understanding of the core holding of Heller. The Second Amendment says that the right to keep and bear arms (and that category is unlimited) shall not be infringed. In a reasonable world, any infringement would be intolerable.

Wait, the liberals cry, that means we couldn’t deny guns to felons!

No, that isn’t what it means. At common law a felon lost the rights and privileges of citizenship. He could no longer vote, among other things. His liberty was restricted. In essence, his rights under the Fifth and Eighth Amendments were circumscribed and narrowed by his violation of the criminal law. So when you make a law that applies to felons, it only applies to those who have been stripped of certain rights by a criminal court. It is not an infringement of the rights of the rest of us.

The Second Amendment — Your New Charmin

The Fourth Circuit made a mockery of the Second Amendment principally by premising its holding on the fact that “assault weapons” look like weapons of war. So does a rubber knife, but no state bans them. In making this ridiculous and unprincipled leap, the judges essentially gutted the one thing that the “gunsense” nuts always rely on: that the right is somehow premised on the existence of a militia. Indeed, by suggesting that the amendment does not protect weapons of war, when weapons of war are precisely what a militia needs, the Fourth Circuit not only does damage to its future credibility as a serious court, it literally shreds the Second Amendment and uses it for toilet paper.

We can only hope that once Judge Gorsuch gets to the Supreme Court he will take certiorari on this display of judicial ignorance (some might say “arrogance”) and write a pro-Second Amendment opinion that bitch-slaps the sorry excuses for judges in the Fourth Circuit. It would be wonderful to see it completely destroy these ridiculous gun and magazine bans once and for all.  While he’s at it, he might take aim at Illinois and the rest of the “may issue” states and kick their asses into line too.

One thing is for certain. Unless we keep the pressure on Congress and demand our federal constitutional rights, and demand that the Senate confirm strong conservative judicial nominees, we can expect further erosion of our right to keep and bear arms.

Filibuster This!

So Chuck the Schmuck Schumer says that he is going to filibuster pro-Second Amendment Judge  Neil Gorsuch. I think that’s a fine idea for turning the Senate more Republican. But his filibuster needs a bit of tweaking.  In fact, Republicans should cooperate… sorta.

First, under the current rules, a filibuster does not shut down all Senate business. So long as the Majority and Minority leaders agree, business can continue on a two track plan. So our Majority Leader, that tower of Jello Mitch McConnell, should simply say “No.” Shut down the Senate while Schumer filibusters. All business stops. No two-tracking.  Nothing is more important than the Supreme Court.  If you want to filibuster, then by golly, do it the old fashioned way.  Moreover, instead of allowing this silent filibuster nonsense, make those democrats go to the floor and speak.  Make them do it the way their predecessors did.  When you make it easy to filibuster, you get more filibusters.

Then, while Democrats are making a mockery of oratory on the Senate floor, our President should identify all the 2018 Democratic senators, like Claire McCaskill in Missouri, and he should start holding big rallies in thin places like Kansas City, St. Louis, and Springfield, Missouri. Doing so would let McCaskill know that there are risks in opposing our president, particularly when her margin of victory the last time was the result of her opponent not being bright enough to keep his mouth shut.

She won’t be that lucky this time, and she’ll face formidable opposition from Republicans renewed in strength in Missouri. At this time, just in Missouri, Republicans control the House, Senate, and Executive branches. Only in cities like St. Louis and Kansas City with large numbers of urban voters do Democrats have any seats at all. And in the middle of the state, excluding the bastion of liberal thought that is the University of Missouri, support for Republican ideals is at an all time high. Missouri Republicans can field a great candidate for 2018, and McCaskill must already understand this. Holding rallies would, in the end, force her to cave.

Similarly, in New Mexico, Martin Heinrich won election in 2012 with only 51% of the vote. He currently has only a 46% approval rating. Given that Hillary won the state in 2016 with an 8% margin of victory Martin might feel pretty confident. But when Libertarian votes are thrown in – as they are apt to be in a Senate race – the state is pretty evenly split. A pro-Trump Republican has more than an even chance in New Mexico, and rallies in Albuquerque and Santa Fe, might generate enough pressure to force Heinrich to put his political survival ahead of his party loyalty.  That’s especially true where terrorism and immigration are getting as much play as they obviously are.

Bob Casey in Pennsylvania also might feel the heat, especially since Pennsylvania turned out for Trump in 2016. Trump doesn’t need to flip all the votes, just create enough pressure that the Democratic contingent calls “Uncle” and lets the up-or-down vote proceed. It would be a huge victory for our President and it would be the exact right way to handle a bunch of bullies in elected office.

As Gorsuch as demonstrated in his confirmation hearings he is a learned and fair justice, with strong beliefs in the Constitution. That seems to me to be exactly the right kind of guy to have on the Supreme Court.

Of course, the majority of Republicans want the Senate to kill the filibuster option altogether. That’s a bad idea. The process protects the minority, and even though the Democrats need more protection from themselves than they do from the political process (their instincts on where the country should be headed being clearly wrong), at some point Republicans could find themselves in the minority and that would be a bad time to whine about a process that they obliterated.

However, if after a month of the shutdown and the back-to-back rallies, cloture could not be obtained, then it would be necessary to nuke the rule and push Gorsuch through. If you don’t respect the limits of the protections offered by the filibuster, then you shouldn’t get to use the filibuster.

It’s pretty clear at this point that the country wants this judge. His popularity is through the roof, and his humble demeanor during the confirmation hearings is testament to the fact that he belongs on the high court.