On Gorsuch, Democrats Need to Choose a Path

by Charles C. W. Cooke

On the matter of what to do about Neil Gorsuch, it seems to me that the Democratic party is about to hit a messaging conundrum. Not because Gorsuch is well-respected and obviously talented — although he is both of those things — but because his particular approach toward the law is difficult to object to in earnest when Donald Trump is in the White House.

Over the last few months we’ve been told repeatedly that Donald Trump is an authoritarian, a fascist, a strongman. Some have called him Hitler or Mussolini (personally, I’ve always thought he was more like Roderick Spode), while others have preferred to warn that this is exactly how America becomes a fascist state. We are, we’re told, in the midst of a “constitutional crisis,” the only remedy for which is #resistance. In 2017, Selma Envy has given way to an American refus absurde.

Not all of this is fluff and hyperbole. Trump does without doubt admire strongmen, and he does have an extremely strange view of the Constitution. He is weak on the First Amendment, he has little understanding of either separation of powers or of federalism, and his attitude toward due process is suspect at best. For a fuller view we will have to see how his presidency develops, but I do not begrudge those who are worried. Skepticism, as Burke so famously noted, is embedded within the American character. There is no reason it should dissipate in this year or the next.

And yet skepticism is not a synonym for stupidity. For whatever reason, President Trump has nominated to the Supreme Court the perfect antidote to his own instincts. From his available writings we can see that Gorsuch is a federalist, that he is mistrustful of executive power, and that he is robust on the Fourth Amendment. And as fate would have it, he has even applied this mistrust in the defense of illegal immigrants. He is, in other words, perfectly placed to help the #resistance — and in a way that Merrick Garland, that friend to government and champion of executive power, was most decidedly not.

And how this gift been greeted by progressives? With hostility and with nonsense. At one point in time it might have made sense for the Democratic party to want a rubber stamp on the Court; after all, many of them believed they were destined to win the White House in perpetuity. But now, with Trump there? Take the guy who’ll happily say no!

The last 24 hours have made me wonder, once again, whether there isn’t some play-acting going on here. When Adam Gopnik says that Trump might literally be the next Hitler, but then turns around and rails against the Second Amendment, one has to wonder how scared he really is. When the Women’s March casts itself as being in an existential fight but then turns around and rejects potential allies, one has to raise an eyebrow. And when Chuck Schumer says that what America needs is a justice who will “fulfill the role in our democracy as a check & balance on the other branches of govt” — and means it as a criticism of Neil Gorsuch, one has to laugh out loud. Reading the statements of dissent last night I was struck both by now normal they sounded and by how uncrisislike was their context. In almost every anti-Gorsuch release, the focus was on abortion and contraception — issues, that is, that would have been at the top of the list if, say, John Kasich were president.

Which is to say that quite soon the Democrats are going to have to choose a path. The first is to cast Gorsuch as an extreme, pre-New Deal conservative who will drown the government in a bathtub and return America to the 1920s. The second is to express fear that Trump will turn the White House into The Berghof and render The Man in the High Castle a documentary. Either one of these options will be fine, but both will not. If Trump is a unique threat, we’ll need robust figures in the judiciary — figures who want to limit executive power, protect the Bill of Rights, and maintain the power of the states. If Trump is not a unique threat, then we can worry about attempts to weaken the government in general and the executive in particular, and we can focus in on the usual hot-button social issues that have informed our politics since the ’60s. That the Left’s initial instinct is still invariably the latter makes me wonder where the its priorities really are.

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