By Marissa Yang Bertucci

Around 4 p.m. on Tuesday, April 4, Oregon Sen. Jeff Merkley took the Senate floor. He wore a gold tie, parted his hair to the extreme right. He stayed on his feet for fifteen hours, protesting the nomination of Judge Neil Gorsuch to the United States Supreme Court. According to the Huffington Post, Merkley’s show of resistance was the eighth longest Senate Floor speech since 1900.

I woke up on the morning of April 5 and learned that Merkley had spoken through the night. A few sentimental tears pricked the corners of my eyes. The Republicans would find a way to confirm Gorsuch, I was sure, but Merkley—a straight, white, economically privileged man—put his knees and vocal cords through hell to echo the displeasure of so many progressive constituents.

But progressive analysts cautioned about the consequences of such a display. And sure as shit, the Republican-controlled Senate decided on Thursday, April 6 to go nuclear, voting to strike down the 60-vote threshold previously required to confirm a Supreme Court nominee in favor of a 51-vote simple majority.

“Republicans have been strategizing for this moment to kick open that door.”

Consider how we got to this point: when Democrats themselves last went nuclear in 2013, they were up against a hostile Republican minority that stubbornly blocked President Obama’s judicial and executive branch nominations. But as the LA Times’ Lisa Mascaro notes, “[D]eploying the nuclear option backfired when they became the minority and President Trump’s Cabinet nominees this year were able to be approved by Republicans with the lower, 51-vote threshold.”

At the time, Supreme Court nominees were not included in the rule change as a nod to the gravity of lifetime bench appointments. But Mascaro argues that the door was nevertheless opened for Republicans to go nuclear now.

Senator Merkley voiced his concern on social media about the simple majority confirmation of Neil Gorsuch to the Supreme Court.

And so, with their feet squarely on the welcome mat, Republicans have been strategizing for this moment to kick open that door. When Supreme Court Justice Antonin Scalia, among the most conservative of the bench, died unexpectedly in February 2016, President Obama nominated Merrick Garland, the Chief Judge of the US Court of Appeals for the DC Circuit. Although Garland, equal parts competent and safe, was vetted and nominated, the Republican-controlled Senate refused to vote on his nomination. For months.

We can only assume that the petty-ass ghost of Scalia twirled happily over this stalemate.

With crickets chirping loudly into 2017, Obama’s pending nomination expired at the beginning of January with the end of the 114th Congress. Instead of bringing Garland back to the table, President Trump nominated conservative-leaning Neil Gorsuch. Merkley and other Democrats saw the deliberate stalemate over Garland for an entire year as a blatant theft of a Supreme Court seat.

While Gorsuch is not the best dude—possibly a plagiarist, definitely a corporate stooge—many people argued that his Supreme Court appointment was fairly benign in comparison to the Trump administration’s myriad offenses, and was therefore not the correct time to deploy so much political capital.

The toxic aftershocks were felt quickly. Senate Republicans used the nuclear option to move forward with their nominee. Gorsuch was confirmed 54-45, with all Republicans (save one abstention) and three Democrats voting in favor.

Merkley tweeted on Thursday afternoon, “For 1st time in U.S. history, debate was just closed on #SCOTUS with

All of this is to say: yeah, the filibuster of Gorsuch’s nomination came from a long and convoluted Senate struggle, and yeah, Democrats knew ahead of time that a filibuster could screw up a lot of stuff if Republicans decided to go nuclear, and yeah, Democrats still decided to filibuster, and yeah, their critiques were legit.

Senator Merkley made a strong case in the Senate against the appointment of Neil Gorsuch to the Supreme Court. Photo by Senate Democrats (license at creativecommons.org/licenses/by/2.0/legalcode).

While we can only speculate about the slippery slope that may follow this erosion of minority party power in the Senate, progressives are asking ourselves: what if this rule change makes it much easier for Trump to appoint Justices far more insidious than Gorsuch in the future? Was the protest worth it? Are political stunts that bring unintended fallout to be avoided altogether?

Let’s narrow the scope to Portland.

Are the protesters right here in Portland less justified in their disruption of the City Council meetings that followed a Portland Police officer’s killing of seventeen-year-old Quanice Hayes, because Mayor Ted Wheeler responded by tightening security at City Council meetings?

I would say hell no.

Wheeler has claimed that these code changes allow for people to be ejected or placed temporarily on “administrative exclusion” from City Hall, and are meant to target a specific kind of senseless disruption or dangerous behavior. He went so far as to say to the Oregonian that his intent was to make sure City Council isn’t “spending every meeting hearing from the same five middle-aged white guys.” But the impact is going to be less civic engagement, especially from people whose identities are regularly profiled as being more “disruptive” or “dangerous.”

Even with this fallout, I believe in the right of protesters to bring their authentic frustrations and concerns to City Hall. So it wasn’t pretty. So it wasn’t “respectable.” So what. The protesters on March 1 called to Wheeler, “Say his name!” And in the end, as he walked out, Wheeler responded quietly, “Quanice Hayes.”

“If activist disruptions result in restricted access to City Hall, do they negate their own value?”

On April 5, a protester took the floor under the premise of discussing a ordinance on towing abandoned boats. He spoke about the recalcitrant atmosphere of recent City Council meetings, and concluded, “What I realized is that the language of resistance has not been properly translated to you, so this is for you.” He reached into his coat pocket and placed a Pepsi in Wheeler’s hand, parodying a controversial ad that borrowed protest imagery and concluded with Kendall Jenner stepping out of the protest to give a Pepsi to a smiling police officer.

Some decry the Portland protester’s move as flash without strategy; others call it a timely critique of the city of Portland’s treatment of Black Lives Matter protesters. Councilmembers were alarmed, and many speculate that Wheeler may tighten security even more.

If activist disruptions result in restricted access to City Hall, do they negate their own value? Have reactionary politics scared us into operating from a scarcity mentality that urges us not to act for fear of reprisal? Maybe the Senate rule change would have happened eventually anyway, and maybe Wheeler would have tightened security in City Council meetings eventually anyway. Maybe not.

If we worry that every act of resistance will result in pushback, we may censor ourselves out of taking risks that result in valuable gains. Real lives are on the line in local and national politics, and acts of resistance ought to come from thoughtfulness and intent, especially centering those most marginalized.

But with the unpredictability of the game, it’s hard to tell dissenters to sit down, shut up, and wait for a more convenient time to resist.


Lead photo by Elvert Barnes (license at creativecommons.org/licenses/by-sa/2.0/legalcode).

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