Federal Courts and Nominations

If Trump’s Not Accountable, Maybe Gorsuch

By Colin McEnroe

One of the most heart-rending stories I’ve ever heard was periodically told by Christopher Reeve, who would describe waking up having forgotten for a spilt-second what had happened to him and then being dragged into the soul-killing reality of his deadened limbs.

I hope never to know what that’s like, but I’ve come a little closer since Nov. 8. I don’t always awaken with full awareness that in the Oval Office is a man I would not be willing to have in my own home. Like Reeve, I am trapped in an unbearable reality incapable of being overruled by any higher power.

Some days, minutes pass before my teeth clench and my blood pressure rises, before I begin to imagine seizing Donald Trump by the lapels and shouting, “No! You don’t sentence good people to detention and death on the off-chance of catching a bad person! No! You don’t take your disheveled adviser, plucked from the lunatic fringe and never confirmed by the Senate, and stick him on the National Security Council, even as you demote people who belong there! No! You don’t impugn the integrity of American voting with no cause for doing it, save your all-consuming vanity. No!”

I could say “No!” all day. I could be the party of no as a party of one.

But there has to be something more to life in 2017 than screaming “No!”

That’s where Neil Gorsuch comes in.

Say what you want about his views, Gorsuch is a plausible Supreme Court justice. Yes, he will be taking what amounts to a stolen seat, but you can’t blame that one on the president. Long before he arrived, Senate leader Mitch McConnell adopted an unforgivably cynical strategy of refusing to have hearings on any Obama nominee. The argument he used was that Obama’s choice would not reflect the will of the people and that their preferences would be more accurately embodied in the choice of a future president.

So we wound up with the guy who lost the popular vote by 2.9 million picking a justice instead of the guy who won the popular vote by 5 million. So much for the will of the people. My blood pressure is going back up.

That stinks, but there is nothing to be done. It’s not like the NFL where you can throw a challenge flag and ask the refs to review the tape and get it right. Think about that. The NFL has better procedural safeguards than we do.

Don’t be surprised if the future fallout from that maneuver is that Supreme Court nominees can only be confirmed under the conditions that now obtain: when the president and Senate majority are from the same party.

Gorsuch himself will be confirmed, one way or another. But we — the Basket of Deplorers — should get something out of it.

The best suggestion — there have been many — so far came from Greg Sargent of The Washington Post and Elizabeth Wydra of the Constitutional Accountability Center.

The Gorsuch hearings should be a calm, reasonable, fair and forceful exploration of every case in which the Supreme Court will probably be asked to respond to the Trump presidency.

What would Gorsuch want to do if Trump refuses to comply with an order from a federal court, even the Supreme Court? (This seems more probable than improbable.)

What does Gorsuch see as the relationship between the presidency and the emoluments clause? (Lawsuits against the president about this are going to pile up on the Court’s doorstep like mailers of discount coupons.)

Is it constitutional to create immigration bans that only apply to people from one particular religion? (You may not agree that that’s what happened last weekend, but the banning of Muslims was something Trump promised repeatedly during the campaign.)

I think it would be a mistake for any senator to treat Gorsuch as an enemy. It would ignore the lessons of Earl Warren, Harry Blackmun and David Souter, justices who, once enrobed, surprised us.

But we seem to be living, these days, about 24 hours from a full-blown constitutional crisis, and it’s important to know what Gorsuch would do about that.

And breathe. And relax. Blood pressure going down.


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