The Gorsuch triumph

Staff Columnist

‘Thanks to the confirmation of Neil Gorsuch as a justice, the Supreme Court will now once again have a relatively solid conservative block of four.  It will be capable of making law when Justice Anthony Kennedy joins it.  That’s roughly as much strength as conservatives have had on the bench since the Warren Court.  And it puts conservatives only one vote shy of their first majority in modern times.” (By Ramesh Ponnuru, NATIONAL REVIEW, May 1, 2017)

I know that we might hear from both sides on this one.  Certainly the source publication might be thought a bit rare among our readers.  I hope not.  Then too there are those who think, and say, that I am often too critical of our new President.  This piece should cover his better side.  I try, sometimes.

Ponnuru:  “Two men, above all, are responsible for this achievement.  Senate majority leader Mitch McConnell made it possible by announcing , the day that Justice Antonin Scalia died, that the Senate would not take up any nomination to fill his seat until a new president took office.  It was a bold move that many Republicans second-guessed, especially during those periods of the presidential campaign when Hillary Clinton was substantially ahead in the polls.  But McConnell persisted in his course.

Donald Trump made it possible, too.  He said he would nominate a conservative akin to Scalia, released two lists of possible nominees from which he aid he would probably choose, won the election, and then made good on his campaign rhetoric.”

Ponnuru continues:  “Successfully, Trump has said, in public and on more than one occasion, that his promises on judges helped get him elected.  He’s right.  In exit polls, 21 % of respondents said Supreme Court appointments were ‘the most important factor’ in determining  their votes.  Trump beat Clinton among them by 56 to 41 %.  McConnell probably helped Trump win the election by raising the Supreme Court’s importance as an issue:  The presidential race came down, after all, to 80,000 votes in three states.

While the backdrop to Gorsuch’s nomination and confirmation  –  a previous blocked nomination from a president of the other party  –  was unusual, a few lessons from the experience will have continuing relevance.”

More from The Journal piece:  “The first is that elections matter  –  and not just presidential elections, but elections for the Senate.  If z Democratic Senate had been elected along with Trump, there’s no way it would have confirmed a conservative nominee of his. If Democrats take the Senate in 2018, as unlikely as it now looks, they won’t let Trump fill a subsequent cacancy with a conservative either.

The second lesson is that quality matters.  President took visible pride in announcing his selection of Gorsuch.  ‘I took  the task of this nomination very seriously,’ he said.  He did.  Trump got the most positive coverage of his presidency as a result.  Conservatives, including ones who had refused to support him in the election, applauded, because Gorsuch had an extensive track record of applying their legal principles.  But many liberals, too, said that Gorsuch  was an impressive nominee.  Three Democratic senators eventually came out for Gorsuch, too; all represent states that Republicans carry comfortably in presidential elections (see lesson one).

A third lesson is that President Trump was right to step back after announcing Gorsuch.  He didn’t fire off incendiary tweets about the judge’s  Democratic detractors.  He had chosen a strong nominee, and let that nominee and his allies  –  inside the administration, in the Senate, and in conservative organizations  –  do the rest of the work of getting him confirmed.

A fourth lesson is that the norms surrounding Supreme Court nominations have changed in response to the heightened role that the institution  has taken in our political life.

This shift in norms has taken many decades.  Justice Scalia was confirmed unanimously in 1986 and Justice Ruth Bader Ginsburg got 96 votes in 1993.  The prevailing theory back then was that presidents deserve deference on their Supreme Court selections.

This time, Democrats didn’t just oppose Gorsuch with near uniformity.  They filibustered in an attempt  to prevent to prevent him from getting a final vote. No minority party had ever done that before. With the Supreme Court having become as politically crucial as it has, there was no chance that a majority party was going to allow a nomination to die that way.  Republicans changed the rules to make it impossible to block confirmation with a filibuster.”

And so it is accomplished.  Perhaps this is the first of the few early Trump victories.  I don’t know.  Some of you may think you do.

I’d suggest that you all keep watching and listening. It certainly has been interesting.  I’m not so sure that it is the function of government, particularly of the presidency to entertain.  But one of the purposes of this newspaper is certainly to entertain, along with to educate, to convince.  Thanks for reading.



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