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So Trump nominated someone last night for the Supreme Court, and it looks like he had good advice and listened to it for a change: I’ve seen no indications at all that this Gorsuch guy is anything other than a qualified jurist. Which means that, in a rational world — barring currently unknown problems coming to light — his confirmation should be routine. Which would be welcome; we have enough turmoil in our public life at the moment.
But then, I read this main story (there were many sidebars) about the nomination in The Washington Post:
President Trump nominated Colorado federal appeals court judge Neil Gorsuch for the Supreme Court on Tuesday, opting in the most important decision of his young presidency for a highly credentialed favorite of the conservative legal establishment to fill the opening created last year by the death of Justice Antonin Scalia….
WHAT? “The most important decision?” In what way, in what sense, in what universe completely lacking in any sense of proportion?
To keep it simple, let’s just consider three things this “young presidency” has done that are much more far-reaching in likely effect:
Pulling out of TPP. This has disengaged America from the Pacific Rim, and invited the accelerated rise of China, in a way that is likely to have staggering consequences in this century both for us and for the billions of others affected — economically, strategically, culturally and almost any other “-ly” you care to name.
Sticking a finger in the eye of every Muslim on the planet. Never mind the momentary unjust treatment of 90,000 or so individuals from Muslim countries, or the unconscionably inhumane “no” to refugees. This has indelibly engraved in a billion or so people’s minds that America regards them and their faith as the enemy, the one impression that our last two presidents have gone out of their way to avoid giving, even as they prosecuted the War on Terror.
Naming Gen. Mattis as defense secretary. Just as Gorsuch’s appears to be, this was one of Trump’s rare good calls. Deciding upon such a qualified leader for our military at a time when the world is so unsettled and there are so many places where things can go really wrong really quickly was of the utmost importance. But it was also an historic precedent, since we had avoided naming recent generals to that post for my entire life. (By contrast, presidents have named LOTS of Supreme Court justices who have come and gone in my life, and none of them held immediate sway over the immense power of the U.S. military.)
Speaking of Mattis — despite the semi-Constitutional issue his nomination raised, an issue worthy of respectful consideration, but not one that should have been an obstacle in light of his qualifications, and of the nation’s desperate need of some qualified people at this point in our history — all but one senator had the good sense to confirm him.
And if our nation had good sense, something similar would happen with Gorsuch. Will it?
No, of course not. As another piece in the Post, by the venerable Dan Balz, noted:
The coming fight over his Supreme Court nominee will be fiercer than before.
Yes, it will. Else we would all be shocked. (I, for one, would be pleasantly surprised.) And what is likely to happen will be an utter waste of energy in a time when political capital needs to be saved for so many other more important battles.
My attitude toward Gorsuch is exactly the same as it was toward President Obama’s pick for this seat, Merrick Garland. They were both qualified for the job. They had already been vetted; they had already proved themselves. They had the requisite knowledge and experience, and reputations for probity and good judgment. There were detectable differences in judicial philosophy — differences that in a calm, proportional world would matter only to legal scholars. But both were qualified for the job — far more qualified than most people elected to Congress, for instance.
Whether one or the other was confirmed is not the Ultimate Issue. It’s not Armageddon.
Here’s the way I see it: The vast, vast majority of times the Court decides cases with wisdom and with ultimate respect for the law and for our civilization. Most decisions are unanimous — which seems remarkable to this layman, since the court deals mainly in matters lower courts were unable to settle conclusively. This has been the case over the decades, no matter whether the majority of the court is labeled “liberal” or “conservative.” Controversy exists only in a minority of cases, and most of those are at least decided intelligently, even if not the way you or I would prefer.
This has been true my entire lifetime.
To me, this testifies to presidents and senators having done a phenomenal job of picking good, qualified justices. The political branches have a much better record in this than in any other area I can think of.
Am I unhappy with some of the decisions? You bet. My opposition to Roe v. Wade is well documented here. I object not only to its legalization of abortion, but to the devastating effect that decision has had on our national politics — specifically, to exacerbating the very problem that I’m on about in this post.
(Considered logically, I am if anything even more opposed to the absurd precedent upon which Roe is based — the Griswold decision, which magically “discovered” an absolute right to privacy hiding in the shadows of the Constitution, a right that had somehow gone unnoticed in the nation’s previous 189 years.)
Today, in part because of Roe, we have vast numbers of people — thousands, if not millions of Americans will vote for a president based largely if not entirely on the basis of what sort of justices he or she is likely to name — “liberal” or “conservative.” Which is insane, given the far more immediate and far-ranging powers of the presidency. A president has the power, at every morning of every day, to make decisions that could lead to the destruction of all human life on this planet — and yet people will actually let their vote be decided on a narrow range of factors involved in a decision the president might make once, or maybe twice, in a four- or eight-year period.
It’s ridiculous. It’s far out of rational proportion.
Of course, since I’ve described the devastating effect of that one decision on our nation’s politics, you might say judicial nominations should be treated as seriously as they are. But no. That decision was an aberration. The number of bad decisions made by presidents in the same period of time since, say, Plessy v. Ferguson or Dred Scott is far, far vaster. Which argues that we ought to devote more of our attention and political energy on the 99.999 percent of what a president does, and less on this one.
Maybe Dan Balz and other experienced observers are wrong — just as they were wrong about Trump’s electoral chances.
Maybe the enormity of what Trump is doing in virtually every other area within his authority will shock our political players into having a sense of proportion. Maybe they’ll save their powder for the big battles that must be fought, some of which (who knows?) might even be won by the forces of reason. Maybe this confirmation will be as routine as it should be, as most of them should be.
But I doubt it. There is a vast infrastructure of political advocacy out there that exists purely for fights such as this one. And both political parties are closely wedded to those interest groups, and fearful of not doing their bidding with utmost zeal.
We’ll see…