President Trump introduces Neil Gorsuch in the East Room at the White House last night. (Photo by Jabin Botsford/The Washington Post)
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| BY JAMES HOHMANN |
| with Breanne Deppisch |
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THE BIG IDEA: Last night was the first time since Donald Trump announced his candidacy in June 2015 that every Republican in the Senate was eager to talk about something he had just said or done.
For some of the GOP lawmakers who assembled at the White House to watch the president nominate Neil Gorsuch to replace the late Antonin Scalia, all of the exhausting questions they’ve endured about whether or not they agree with Trump on whatever the controversy of that day was seemed worth it.
A dozen days into his rocky start, Trump’s pick earned him goodwill from friend and foe alike in the conservative establishment.
Multiple academic studies of Gorsuch’s record on the 10th Circuit, using reliable political science measurements, suggest that he will rule to the right of John Roberts, Samuel Alito and even the late Scalia.
At just 49, Gorsuch would become the youngest Supreme Court justice since Clarence Thomas was confirmed in 1991. Just how young is he? He’d be the first ever member of the court to serve alongside a justice for whom he once clerked. Trump suggested during his speech that might be able to serve for 50 years.
Even Republicans who had been tipped off about the pick yesterday afternoon were privately worried that Trump would somehow spring a surprise on them. One senator only half-jokingly wondered whether the president might nominate his liberal sister, a judge on the Third Circuit.
As an indicator of just how reliably conservative he is, the National Rifle Association, the Family Research Council, the U.S. Chamber of Commerce, the Koch political network and the head of the Federalist Society formally endorsed him within minutes of the announcement.
-- To a man, every GOP senator who has been publicly critical of Trump praised the pick:
Ted Cruz appeared on several TV shows from outside the White House to celebrate the news:
“A guy who’s been a three-day drunk could figure out this guy is one of the most qualified people ever to be at the circuit level,” said Lindsey Graham. “If we blow up the Senate over a man like this, it really would be a shame.”
Maureen McCarthy Scalia, the widow of Antonin Scalia, touches the face of Senate Majority Leader Mitch McConnell at the White House last night. (Andrew Harrer/Bloomberg)
-- Besides Gorsuch himself, the biggest winner last night was Mitch McConnell. Engaging with the hypotheticals of counterfactual history is always fraught, but based on hundreds of conversations with voters across the country before and since the election, I believe it is possible that Trump would have lost had McConnell not kept Scalia’s seat open. The election was very narrowly decided, and many conservatives who live in the suburbs of Milwaukee, Philadelphia and Detroit found Trump odious but rationalized voting for him because of the court.
With the benefit of hindsight, we can now say more firmly that Barack Obama blew it by picking Merrick Garland last year. The former president naively tried to make Republicans an offer they couldn’t refuse by picking a milquetoast, pro-business, moderate, middle-aged white guy who he thought they’d accept, rather than risk Hillary Clinton choosing someone far more progressive. Clinton, to her detriment, was always cagey and evasive about whether or not she’d re-nominate Garland. That helped Republicans defang the issue.
While Obama was playing checkers, McConnell was playing chess. Liberal groups couldn’t get their followers ginned up for someone as bland as Garland. Conservative groups – which tend to be more strategic and better financed than their counterparts – mobilized more effectively. In stark contrast to the Republican convention, where SCOTUS was a buzzword, no Democrat mentioned Garland during the Democratic National Convention.
McConnell’s move was risky. It might have backfired had Obama chosen a minority candidate from a swing state like Wisconsin or Pennsylvania, helping reactivate the coalition that allowed the former president to win in 2008 and 2012. On the other hand, if McConnell had acceded, Democrats would today have a 5-4 working majority.
To be sure, the Kentuckian has put another nail in the coffin of the antiquated notion that the Senate is the world’s greatest deliberative body. But while McConnell’s move was deleterious for the long-term health of the institution in which he has served for three decades, politically it was a master stroke.
By McConnell standards, the majority leader was giddy last night. He even stayed up to appear on Fox News live at 11 p.m. And then he took a victory lap this morning by calling into conservative talk radio shows.
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| Watch Trump's full speech announcing SCOTUS nominee |
HOW TRUMP DECIDED:
-- He settled on Gorsuch after only one in-person interview at Trump Tower, at which he was joined by just one other person -- White House Counsel Don McGahn. From Politico’s Shane Goldmacher, Eliana Johnson and Josh Gerstein: “Top White House brass, including Mike Pence, Reince Priebus, and Steve Bannon also had their own interviews with the final four contenders. Internally, (Richard) Pryor had been seen as an early frontrunner in part because of [Jeff Sessions] … for whom Pryor once served as deputy attorney general in Alabama years ago. But Pryor — who once called Roe v. Wade ‘the worst abomination of constitutional law’ — encountered some surprising resistance among evangelical leaders, a group that advisers said Trump was determined to please from the start.”
-- The rollout had all the hallmarks of a Trumpian production — except for this: The secret held. From Philip Rucker: “In recent weeks, Trump began to settle on his choice, but did not make a final decision until Monday, when he called Gorsuch to notify him that he was the pick. From there, Trump’s aides set into motion a cloak-and-dagger plan they had orchestrated to bring Gorsuch to Washington without him being detected. All day Tuesday, speculation was rampant. … (Thomas Hardiman of Pennsylvania) had been spotted at a gas station in Pennsylvania, and CNN reported that he along with Gorsuch were being brought to Washington to add suspense … Then there were the Twitter accounts. Two similar accounts were created identifying both Hardiman and Gorsuch as Trump’s Supreme Court nominees, with links to White House websites. It seemed as if the White House social media team had been behind the accounts — again, to create suspense — but White House officials said that was not the case.” Still, the fact that the White House managed to stay mum is a notable achievement for an administration already becoming known for its leaks.
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| Meet Neil Gorsuch, Trump's pick for the Supreme Court |
GET TO KNOW GORSUCH—
-- Irony alert: Trump’s campaign was largely animated by a desire to repudiate the elites (and he successfully cast Clinton as their avatar), but Trump used his announcement speech to emphasize Gorsuch’s elite bona fides. His attended an elite prep school in the D.C. suburbs before going to Columbia, Harvard Law and then Oxford. He was a Truman scholar who clerked for David Sentelle, Anthony Kennedy and Byron White. He spent 10 years at a prestigious D.C. firm and worked in George W. Bush’s Justice Department.
-- Gorsuch’s late mother, Anne Burford, was the head of the Environmental Protection Agency for 22 months under Ronald Reagan before resigning under a cloud of scandal in 1983 following a nasty fight with Congress. From Yahoo News: “Together with her fellow Westerner, James Watt — Reagan’s pick for secretary of the interior — she personified the ‘Sagebrush Rebellion’ of the 1970s and 1980s, an attempt by ranchers, farmers, miners and oil interests to overturn federal land-use and environmental regulations. She did her part, cutting her agency’s budget by 22 percent, curtailing research and enforcement activities and scaling back regulations on air and water pollution. … She even attempted to relax limits, imposed in the 1970s, on lead additives to gasoline, regulations that are credited now with preventing the poisoning of large numbers of children. A New York Times editorial in 1983 said she had taken one of the most effective government agencies and left it ‘reeking of cynicism, mismanagement and decay.’ In her 1986 book, ‘Are You Tough Enough?’ Ms. Burford called the episode her ‘expensive mid-life education.’” (Read The Post’s 2004 obituary of her here.)
-- Trump had options with blue-collar backgrounds. The runner-up for the job, Hardiman, drove a cab to put himself through law school and went to Notre Dame on a scholarship. Pryor, who was pushed by Sessions, even attended a state school (the University of Louisiana at Monroe). Vox notes that, with Gorsuch, six of the nine justice will have gone to Harvard.
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| Watch Neil Gorsuch's full speech after Trump nomination |
-- “He is a proponent of originalism--meaning that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written--and a textualist who considers only the words of the law being reviewed, not legislators’ intent or the consequences of the decision,” Robert Barnes writes. “Gorsuch’s opinions favoring the owners of Hobby Lobby craft stores and nonprofit religious group called Little Sisters of the Poor took the same sort of broad reading of the Religious Freedom Restoration Act as the Supreme Court’s conservative majority. In Gorsuch’s words, the law ‘doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.’”
-- “Gorsuch is a favorite of legal conservatives because he has sharply questioned a three-decade-old legal precedent that many on the right believe has given too much power to the regulatory state,” Politico’s Josh Gerstein notes. “The landmark 1984 Supreme Court ruling involving the Chevron oil company held that courts should defer to federal agencies’ reasonable interpretations of ambiguous federal laws. In a ruling last August in an immigration case, Gorsuch questioned the wisdom of that doctrine, arguing that the meaning of the law is for judges to decide, not federal bureaucrats. ‘Where in all this does a court interpret the law and say what it is?’ Gorsuch asked in an extended digression on the subject. ‘When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person? Where Chevron applies that job seems to have gone extinct.’”
Justice Anthony Kennedy attends the Annual Red Mass at the Cathedral of St. Matthew the Apostle in Washington last October. (Joshua Roberts/Reuters)
THE KENNEDY FACTOR:
-- “Trump makes his pick, but it’s still Anthony Kennedy’s Supreme Court,” by Robert Barnes: “The question is how much longer he wants it. Kennedy, 80 and celebrating his 29th year on the court this month, will remain the pivotal member of the court no matter how the warfare between Republicans and Democrats plays out. On almost every big social issue, neither the court’s liberal, Democratic-appointed justices nor Kennedy’s fellow Republican-appointed conservative colleagues can prevail without him. That is why an undercurrent of Trump’s first choice for the court was whether it would soothe Kennedy, making him feel secure enough to retire and let this president choose the person who would succeed him. … Who better, then, to put Kennedy at ease than one of his former clerks? Kennedy trekked to Denver to swear in his protege Neil Gorsuch on the appeals court 10 years ago.
“Some say Kennedy would be reluctant to leave, too, if it meant a more conservative court that would reverse some of his landmark decisions, especially on gay rights. But others who know him suggest he is ready to go. ‘I would put it at 50-50 that he leaves at the end of the term,’ said another former clerk. Kennedy recently hired clerks for the term that begins in October, but that is seen more as insurance than intent. The gentlemanly Kennedy could not be more different from the combative Trump, and so some involved in filling the current Supreme Court opening kept the justice in mind during the process. … Pleasing Kennedy is wise but not dispositive, as lawyers at the court like to say.”
-- “Justice Kennedy has been silent about his plans, but it was widely noticed by his fellow justices and other court watchers last fall that he had not hired a full complement of clerks for the next term,” Peter Baker adds on the front page of the New York Times. “Some thought he was slowing down when he did not teach last summer in Salzburg, Austria, as he has for many years. Another sign was his decision to schedule his reunion of clerks, normally held every five years, one year early. But after Mr. Trump’s election, Justice Kennedy moved ahead with hiring clerks and authorized the court spokeswoman to issue a statement meant to dispute speculation that he might retire. The statement said that he had not gone to Salzburg because of conflicting family plans but would return there in 2017, and that the clerks had wanted to hold the reunion early to celebrate his 80th birthday.”
HE WILL BE THE NEW SCALIA:
-- A study led by Mercer University law professor Jeremy Kidd concluded that Gorsuch is the second-most similar to Scalia of the 21 prospective justices on the lists Trump released during the campaign. (Bloomberg)
-- SCOTUSblog, which is widely read by court insiders, calls the parallels between Gorsuch and Scalia “DOWNRIGHT EERIE”: “Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making,” Eric Citron explains. “He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia). … The reasoning in Gorsuch’s 2008 concurrence in United States v. Hinckley, in which he argues that one possible reading of the Sex Offender Registration and Notification Act would probably violate the rarely invoked non-delegation principle, is exactly the same as that of Scalia’s 2012 dissent in Reynolds v. United States. The notable exception is one prominent concurrence last August, in Gutierrez-Brizuela v. Lynch, in which Gorsuch criticized a doctrine of administrative law (called Chevron deference) that Scalia had long defended. Even here, however, there may be more in common than meets the eye.”
As we went to press, we also got note of the Statement by the National Security Advisor on putting Iran on notice as we also got word that somehow CNN was "put on ice" to drive down ratings--and as AL Jazeera provided a "firing line perspective" on the plight of the refugees:
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