Appointing Neil Gorsuch in Our Age of Disappointment

Neil Gorsuch cried when Antonin Scalia died, and that tells you most of what you need to know about him. He charts even further rightward of the deceased, originalist justice and he’s Donald Trump’s nominee to Merrick Garland’s Supreme Court seat. As for Trump’s appointments thus far, he’s far more of the Nikki Haley wing than the Steve Bannon faction. He seems like a human being with deep convictions rather than self-aggrandizing convictions. It’s a shame he’s been nominated to the Supreme Court at such a bad time.

Before even analyzing Gorsuch’s ideology, it’s fair to note Trump could’ve nominated a far more liberal judge and it still would have been grounds for the left to protest. Merrick Garland was, for all intents and purposes, the definition of a moderate and he never even got a hearing with the Senate. Mitch McConnell is already gobbling out hypocritical calls for tradition to be upheld. Well, now the left has a McConnell Precedent to outweigh the Senatorial Turkey’s oft-referenced Biden Rule.

The Democrats are now in an impossible situation with Gorsuch. They’re being flanked by angry constituents who want obstructionism to be the only strategy going forward after they built a brand around demonizing obstruction. Gorsuch has all the credentials and qualifications to sit on the Supreme Court, except that he’s not Merrick Garland. Mitch McConnell won the battle, but he all but guaranteed a hyper-partisan, gridlock style in politics that both parties will probably be dealing with for decades.

There’s little doubt he’ll wind up on the bench. The radical and moderate wings of the GOP won’t find anything in his resume to dissuade them. His Ivy League and Oxford education will join hands with his experience as a federal judge on the Tenth Circuit’s Court of Appeals to make it hard for any but the most ideologically committed leftist Democrats to obstruct his nomination. Chuck Schumer is calling for a hard line on the guy but even if he gets his wish (or follows through on it himself, for that matter), the right has a nuclear option to secure his spot.

I don’t want to demoralize any of those who plan to protest his nomination. By all means, keep it coming. We’ll see soon if it paid off with Jeff Sessions or Betsy DeVos because, if any of them are going to fall under the pressure, it looks like it’ll be one or both of them. Perhaps it’ll all come together and he won’t end up on the court. There’s going to be a bareknuckle fight over this but let’s pretend for now it winds up with Gorsuch confirmed.

It means, at least for now, Trump will be dealing with a pretty familiar, twenty-first century judicial makeup. Clarence Thomas will still be far and away the most conservative voice. Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor will hold the line for the left. Samuel Alito and John Roberts will keep on as the moderate right. Anthony Kennedy will continue going to sleep knowing he’s one of the last true wildcards in American politics.

In a week of upsets and moral outrages, Gorsuch is pretty business as usual. Would Hillary Clinton or Bernie Sanders have picked him? Not in a million years. What about Ted Cruz, Marco Rubio, John Kasich or Jeb Bush? It’s pretty easy to say he would’ve at least been in the running for each of them. Antonin Scalia is something of a conservative sacred cow so Trump’s stuck pretty well to Republican orthodoxy here, despite proving himself a heretic in so many other arenas. Gorsuch is a godsend for everyone who prefers their judicial activism nonexistent and their constitutional originalism ascendent.

For progressives, this appointment is perhaps a relief considering who else could’ve wound up the nominee but that’s hardly a comfort. The outright crazies could wind up on the court if one of the older justices slams their gavel for the last time, at which point this tenuous balance would become a thing of the past. For now, the tenuous balance is all we have so let’s call it for what it is.

We now have the same basic judicial alignment that cinched Citizens United and Obamacare alike. This setup gutted voting rights and made same-sex marriage legal. It said Hobby Lobby didn’t have to provide contraception for their employees and that law enforcement couldn’t search through someone’s cell phone without a warrant. The Supreme Court as random is better than the Supreme Court as regressive.

Gorsuch’s devotion to the original meaning of the Constitution runs pretty much on track with the desires of conservatives but not always. His criminal justice record will raise a few eyebrows for both the Black and Blue Lives Matter crowds. He hasn’t advertised his thoughts on abortion (he’s likely pro-life) but he doesn’t seem like the sort of guy whose one goal in life on a crusade to overturn Roe v. Wade. He’s a big fan of religious freedom (code for he probably thinks you don’t need to bake cakes for gay people or pay for your employees’ birth control) but this also means he’s a big fan of free speech in general. Remember: Scalia thought you shouldn’t get in trouble for burning flags.

Luckily, the one thing our Supreme Court’s recent team of activists and originalists seem to agree on is constraining executive power when they have the ability. Gorsuch looks like he’ll continue that tradition. In the Trump years, we’ll need all the help we can get to preserve our Bill of Rights. Much has been made of the 2010-2016 lineup’s 5-4 rulings but Gorsuch coming on also means we’ll probably keep getting 9-0 when the Executive Branch starts getting out of hand.

This is the most consoling thing about Gorsuch’s appointment. Trump’s constant refrain that he’d appoint a “Scalia-like justice” will end up biting him in the ass. The left has its problems with Scalia but so did the right. The same goes for Gorsuch. He wrote in his dissent for United States v. Nichols, “[T]he framers of the Constitution thought the compartmentalization of legislative power not just a tool of good government or necessary to protect the authority of Congress from encroachment by the Executive but essential to the preservation of the people’s liberty.”

In the Trump years, that sort of opinion should be music to your ears. Making a better world or a worse one both require forward motion. For now, I’ll take agreement on keeping Trump in check and gridlock everywhere else.