Neil Gorsuch is the Best Libertarian Could Have Hoped For

Some thoughts on President Trump’s Supreme Court Nominee Neil Gorsuch

1. Scalia Would Have Hated Trump

This occurred to me as I watched the announcement. Donald Trump is probably the last person Antonin Scalia would want as President. Trump’s persona is seemingly opposite of how Antonin Scalia conducted himself.

2. Almost on Time

The announcement was scheduled to occur at 8 pm EDT. President Trump appeared at the podium at 8:02 PM (at least according to my cable box’s clock). It’s been a while that a Presidential announcement happened the close to the announced time.

3. Gorsuch is the Best Libertarian Option

Last May, Trump presented a list of 11 Judges he said would make a good replacement for Antonin Scalia. Neil Gorsuch was not on that list. Saying that, Gorsuch is probably the best a libertarian could hope for in a nominee. He is as skeptical of Federal Power as Scalia was, including government action criminal law and Fourth Amendment Issues. He believes in a plain reading of the Constitution. He is even more Scalia than Scalia as Gorsuch believes the Chevron Test is probably too deferential to Federal Agencies. This would suggest Gorsuch would reduce the role of the Federal Government and restore more power to the states, allowing them to once again be Justice Brandeis’s “Laboratories of democracy”

What’s interesting is if you read the profile of Gorsuch on SCOTUSBlog by Eric Citron and Andrew Hamm, you get a view that is very different from the profile by Reason’s Damon Root. Whereas Hamm suggests Gorsuch has a nuanced view of issues such as Euthanasia, Root seems to find Gorsuch’s views mean he is staunchly ant-abortion. These are two very different readings of the same works and I’m not sure how you reconcile them.

Root’s colleague, Jacob Slocum, view is similar to mine, “If Gorsuch’s judicial philosophy is in fact similar to Scalia’s, libertarians could do a lot worse.”

Is Gorsuch the prefect libertarian justice? No. But Trump is not a libertarian. And sometimes, a half a loaf is better than no loaf.

4. Sorkians Should Be Happy

You don’t know what a Sorkian is? These are people who own copies of Aaron Sorkin’s Guide to Virtue Signaling. They can quote all manner of Sorkinese statements from The West Wing, The Newsroom, Sportsnight, etc. which generally espouse an enlightened view of Americana that lines up perfectly with Progressive Ideology (and often laments how misguided non-Democrats are). As it relates to the nomination of Judge Gorsuch,The West Wing episode “The Supremes” has President Bartlett nominate a conservative justice and a liberal justice to maintain a mythical balance of ideologies on the Court. If that is ideal Sorkian Supreme Court, then Gorsuch is a perfect fit. His judicial views are consistent with those of Justice Scalia. When he sits, the Court will have the same ideological make up as it did for the entirety of the Obama Presidency.

A. Democrats Are in A Bind

Chuck Schumer, within minutes of Gorsuch’s nomination, already announced he was voting against the Judge, employing the Grouch Marx “I’m Against It” reasoning. Democrats are threatening to filibuster the nominee in retaliation for the Republicans filibustering the nomination of Garland Merrick. This puts the Democrats on shaky ground for a number of reasons:

          B. The Next Presidential Election Is in Four Years.

The Republicans refusal to consider Garland was based on very sound principle: There was a general election in a few months. That election would decide the future direction of the Country. Let the people indicate which direction they preferred and then that President could nominate a suitable justice.

What is the Democratic argument? We just had an election, but let’s wait four years to see if the people change their mind? What if they reelect Trump? Then the argument would be… what? “Ok, best three out of four?”

           C.There Are More Democratic Senators Than Republicans Up for Reelection in 2018

The Senators (also known as “Class I” Senators) who are up for election next year were last in an election race in 2012, the year Obama was reelected. As a result, the Democrats have more seats to protect than the Republicans. There are 21 Democratic Senators, 8 Republicans (9 if Jeff Sessions in confirmed as Attorney General. Alabama would have a special election to fill his remaining term), and two Independents (though both Bernie Sanders (VT) and Angus King (ME) who caucus with the Democrats) whose seats are up for election.

Of those seats, the Democrats have what are considered “safe” seats in 12 races. (I would note Massachusetts is listed a safe Democrat seat. I think that is debatable. Elizabeth Warren is not that popular within Massachusetts. And if Governor Charlie Baker (R) ran against her, he could defeat her). That would mean they have to defend 10 seats in contested elections. Republicans have 6 safe seats (and probably 7 if you include Alabama). Which means if the GOP held all their safe seats and lost the two contested races (Arizona and Nevada), they would still hold their majority, 51-49.

Of those 10 contested seats Democrats have to hold, 8 are in states won by Trump in 2016, 1 by Clinton (New Jersey), and the split in Maine (though Maine is probably safely Democrat).

If the Democrats want to retake the Senate, they need to hold all of these seats. So, there is going to be a lot of pressure on many of these Senators to listen to the voters of their states and let Trump have his nominee. Rejecting or worse, filibustering could be politically damaging. Already West Virginia Senator Joe Manchin III has indicated he will not support a filibuster.

          D. “They Did It First” Argument Doesn’t Impressive Everyday Americans

This is what Schumer is essentially arguing “The Republicans blocked our nominee, so we get to block theirs.” It sounds childish. And the American people will generally tolerate a lot of crap from their elected officials, but generally do not put up with them acting like 3 year olds.

          E. Do You Want This Fight Now?

As noted above, Gorsuch’s ascension to the Supreme Court will restore the status quo ante Scalia’s death. Nothing changes. Do Democrats really want to waste their powder on this battle?

Consider Ruth Bader Ginsburg. The Notorious RBG is 83 years old and in less than ideal health. Many Progressives spent the last couple of years trying to convince her to retire from the Court to allow Obama to appoint a Progressive replacement. There is a decent chance she may retire (willingly or for health reasons) in the next couple of years. If that happens, Trump’s pick would alter the balance of the Court away from progressives even more.

If Schumer follows through on his threat to filibuster Gorsuch into oblivion, there will be a lot of pressure on Majority Leader McConnell to use the nuclear option and abolish the filibuster on Supreme Court nominees. At that point, the Democrats would no leverage when it comes to the potential nomination of a Ginsberg replacement. Look at the battle over the President’s cabinet picks. The Democrats have no leverage on the nominations because they have no ability to block anyone. (Thanks Harry Reid!).

5. What Does This All Mean?

It means it’s Showtime!

Has the Trap Been Sprung

I had noted when Nevada Governor Brian Sandoval’s name was being floated as a possible replacement Supreme Court Justice for the late, great Antonin Scalia, that President Obama nominating a “moderate” was essentially telling the Democrat base he thought their nominee would lose in November and that this was the best they could hope for because a Republican nominee would be much worse.

Sandoval took his name out of consideration about the same time my piece went up. [That’s called timing, folks!] This morning, the President nominated Merrick Garland of DC Circuit Court. Garland is being described as a moderate. So, does my assessment still stand?

Yes for all the reasons I noted before.

But now, let’s spin it forward: It’s November 8, 2016. Hillary Clinton has just defeated Donald Trump. She is the President-elect.  Come January 2017, Clinton will have the Elections Matter Mantle and can nominate someone even more “progressive” than Justices Kagan and Sotomayor.

At that point, what’s to stop Chuck Grassley and Mitch McConnell from scheduling a snap vote on Garland? He would be, after all, the best they can expect? Indeed when Garland was nominated to the D.C. Circuit, then Judiciary Chairman Orin Hatch noted Garland was the best Republicans could hope for as a Bill Clinton nominee.

Until then, they need not do anything.

It’s a Trap! (or is it?)

So Obama is vetting Republican governor Brian Sandoval as a replacement for the recently deceased Antonin Scalia. Republicans have already announced they will not consider any nomination because it is an election year. And they are following the Democratic tradition as embodied in the Thurman Rule, the speech by then Senator Joe Biden in 1992, the speech by Senator Charles “Chuck” Schumer in 2007, statements by then Senators Barrack Obama and Hillary Clinton.

Cue Admiral Ackbar:

The question is why would Obama nominate a Republican? Democrats see this as a “trap”, i.e. nominate a moderate/centrist and embarrass the Republicans for not voting for the inoffensive candidate and portraying the GOP as obstructionists. It makes sense on a certain level. But is it? Dig down a little and there is a flaw.

[A stipulation: We will define centrist as an Anthony Kennedy justice, a quasi-libertarian who tends to side with the progressive side on expanding rights to different groups and sides with conservatives on other matters. The centrist wouldn’t be in the mold of Scalia, but he wouldn’t be a Ginsburg either.]

Let’s game this out: Obama nominates Sandoval, a white male Republican Governor. Because of this, the Republicans eventually buckle and vote him in. Now what? Sandoval is 52 years old. So, you’re looking at someone who could be on the bench for 30 years (Scalia was 79 when he died). Unless Clarence Thomas leaves the bench soon, the Supreme Court will continue to be seen as “conservative” for the foreseeable future. All thanks to Barrack Obama.

[Yeah, that seems plausible. But let’s just pretend shall we.]

Such a nomination would depress the base and hurt the party. Clinton is trying to make the SCOTUS nominee a campaign point. Nominating Sandoval removes that issue. Not only that, it would set a precedent should Clinton win in November. The Republicans would be able to argue that the ideological balance had to be maintained and if one of the conservative justices steps down, a conservative Justice would have to be nominated to replace him.

If Obama actually nominates Sandoval, he’s essentially telling the Democratic Party’s base the Republicans are going to win in November. After all, why would he nominate a centrist if he thought Clinton will win the 2016 election? A Hillary victory gives her the mandate to nominate a more liberal justice to replace Scalia, someone like Ginsburg. Picking a centrist now is tells the base, “A Republican is going to win in November and if we don’t put this guy on the bench now, the new President’s picks is going to much worse for us.” How’s that for a battle cry to encourage people to come out and vote?

That’s why all of these news leaks claiming Sandoval is being vetted are just attempts by the White House to troll the Republicans. Aside from the fact that Obama would never make a pragmatic decision when it comes to dealing with the GOP, it would be seen as a capitulation by the Sanders/Warren wing of the party and it would cause a revolt. You could even see Democrats trying to filibuster the nominee. Imagine Chuck Schumer, who has spent the last two weeks telling people to ignore what he said in 2007 doing a complete 180 and saying no, listen to what I said back then.

Right now, the smart thing for the Republicans to do is nothing. Now if Sandoval is in fact formally nominated, maybe the party will have to reconsider (especially if it looks like Trump will be the nominee) whether they should hold hearings and vote. But until then as the old saying goes, “Be cool, fool.”