2017-03-24 / View From Here


Mr. Trump and the Judge

It’s been a little bit of a ragged time for Team Trump, but the Supreme Court situation certainly looms as a bright spot for Mr. Trump’s presidency.

Some of President Trump’s problems right now are just the product of taking on difficult challenges, such as health care, as discussed last week, where new legislation requires difficult policy choices plus wading through the arcane rules of the United States Senate to make sure the proposal satisfies the budget reconciliation procedures so that only 51 votes are required for passage.

On the other hand, some other wounds suffered by Mr. Trump’s presidency have been self-inflicted. With respect to the current Congressional hearings on alleged Russian meddling in the 2016 election, there seems to be no substantiated basis for the contention that Mr. Trump’s campaign colluded with Russians; indeed, outgoing Director of National Intelligence James Clapper has denied that there was any evidence of such collusion. With appropriate comments on the matter, Mr. Trump may have been able to raise legitimate issues about whether the investigation and surveillance of his campaign and his associates by the Justice Department before the election by former President Obama’s Administration reached intrusive and abusive levels.

Instead, however, Mr. Trump totally stepped on his legitimate message with over the top charges that Mr. Obama was personally involved in wiretapping him at Trump Tower. He then compounded the problem by allowing the White House to publicize a report by a Fox News commentator claiming that British intelligence had been involved in covert activities against Mr. Trump. This is an apparently completely baseless charge that has strained relations with perhaps our best ally and led to the suspension of the commentator by Fox.

With regard to Mr. Trump’s Supreme Court nomination of Judge Neil Gorsuch, however, all of the political problems are shouldered by his Democratic opposition.

Democrats, of course, contend that they were unfairly denied the controlling seat on the Supreme Court when President Obama's nominee for the Court following the death of Justice Antonin Scalia, Judge Merrick Garland, was denied a vote in the Senate, which had become Republican-controlled after the 2014 elections. Democrats claim that the GOP Senate shirked its duty to vote on Judge Garland in 2016, while Republicans contend that they had no duty to advise and consent to Mr. Obama's election year pick of a liberal judge. Once Mr. Trump was elected, all chance ended of Judge Garland's confirmation.

By all accounts, Judge Gorsuch, a Harvard Law graduate currently sitting on the Tenth Circuit Court of Appeals in Denver, is an eminently well qualified jurist and has never been touched by any allegations of impropriety. (To be fair, this was also true of Judge Garland.). Indeed a number of important liberal leading lawyers, including Neal Katyal, acting Solicitor General in the Obama Administration, have endorsed Judge Gorsuch. The most Senate Democrats can say about Judge Gorsuch is that they disagree with his judicial philosophy, which is based on the original intent of the drafters of the Constitution and perhaps a belief in natural law.

This is a fight the Democrats cannot possibly win. If they attempt a filibuster against Judge Gorsuch’s nomination, which would ordinarily require 60 votes (there are 52 Republican Senators), the Republican majority will invoke the “nuclear” option, which will change the rules of the Senate to eliminate permanently the filibuster for Supreme Court nominees; the Democrats did this for executive and lower court nominees when they controlled the Senate in 2013. Eliminating the filibuster for Supreme Court nominees would be a big negative for the Democrats if Mr. Trump nominates a later nominee that is much more controversial or less qualified that Judge Gorsuch. On the other hand, allowing Mr. Gorsuch to be confirmed without a filibuster will anger the hard line members of the selfstyled “resistance” who want to fight Mr. Trump’s presidency at all costs. A classic lose-lose dilemma for the President’s opponents.

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