Law & the Courts

Gorsuch’s Confirmation Is Still the Best Argument for Trump

President Trump applauds Neil Gorsuch after he was sworn in as an associate justice of the Supreme Court in a White House ceremony, April 10, 2017. (Joshua Roberts/Reuters)
As the high court’s newest justice is set to cast the deciding vote in a key case, his presence is a useful reminder of all the president has accomplished for conservatism.

For some liberals, it’s the grudge that never dies.

As the Supreme Court heard oral arguments this week in  Janus v. AFSCME, the eyes of the nation were riveted on its newest member: Justice Neil Gorsuch. As it turned, Gorsuch took a page out of Clarence Thomas’s book, remaining silent as the two sides presented their arguments in a case that will determine whether municipal employees have a right to avoid paying union dues. The last time a similar case was heard, the recent death of Justice Antonin Scalia, the man whom Gorsuch ultimately replaced on the court, created a 4–4 deadlock. Now, the conservative Gorsuch is poised to cast the deciding vote that deals a fatal blow to unions’ taxation of workers who don’t wish to be taxed.

When liberals think of Gorsuch, all they can see is a vision of Judge Merrick Garland, the man President Obama nominated to succeed Scalia. That was the conceit of a New York Times editorial that took the occasion of Janus v. AFSCME to complain about what they ironically — though correctly — labeled “Mitch McConnell’s finest moment.”

For conservatives, it was a useful reminder that there’s still no satisfactory response to those who defend President Trump on the basis of Gorsuch’s nomination alone.

At this point, it’s hard to believe even left-wingers can still work up the energy to claim that Gorsuch is sitting in Garland’s seat. More than ten months after Gorsuch’s confirmation, it is tedious but apparently still necessary to remind the Times editorialists and all the liberals nodding along with them that Garland’s fate was sealed in November 2014, when Republicans won a midterm landslide and a 54–46 majority in the Senate.

There was no precedent for a president of one party demanding that a Senate controlled by the opposition not merely confirm a new justice in the middle of an election year but also flip the Supreme Court from a conservative to a liberal majority. That was never going to happen, and while Majority Leader McConnell’s decision to not even bother holding hearings on Garland was also unprecedented, it merely saved the judge the agony of a confirmation fight that had only one possible outcome.

Of course, had Hillary Clinton beaten Trump in November 2016, Neil Gorsuch wouldn’t be on the court. It’s not clear that Garland or anyone else would be sitting in that seat either, because there’s no way of knowing whether Clinton could have persuaded a Senate that was still controlled by the Republicans to replace Scalia with anyone but another conservative. It’s entirely possible that we might still be stuck with a Supreme Court vacancy today if Clinton had won.

But Clinton didn’t win. Gorsuch was confirmed, and that fact remains the single most potent argument in favor of voting for Trump two Novembers ago.

In the past 13 months, the president has provided principled conservatives and others with plenty of unpleasant moments. By now, most of us are so used to his social-media temper tantrums that we barely bat an eye. We’ve learned to shrug our shoulders when he says things that are blatantly untrue. Statements like his claim that there were some “decent people” on both sides of the deadly clash between white supremacists and counter-protesters in Charlottesville last August grate on our nerves, but we console ourselves that he didn’t really mean it or that if he did, it doesn’t impact policy.

As Mona Charen eloquently pointed out last week at CPAC, Trump has also made hypocrites of a conservative movement that once stood up for sexual virtue, because of his own record and that of men like Roy Moore, whom he ultimately endorsed in last year’s disastrous Alabama Senate election. It ought to have made decent conservatives everywhere cringe when attendees booed Charen for calling out the president.

It is almost impossible to separate Trump the man and social-media creature from Trump the president, but conservatives must try to do so, because Trump’s presidency has seen a series of major conservative victories.

All this has been more than enough to send some people who were once thought of as pillars of conservatism into the ranks of the “resistance” to Trump. Some are so convulsed by rage that they oppose stances they would once have supported simply because Trump took them. For some of these Never Trumpers, hatred of Trump has become a substitute for ideology itself. To the cheers of their new liberal friends, they castigate conservatives who didn’t want Trump to be the Republican nominee but who have made their peace with him as president. They mock former allies who answer “But, Gorsuch” as servile toadies to a fraud.

Yet while it is almost impossible to separate Trump the man and social-media creature, who embarrasses the nation on a regular basis, from Trump the president, who has governed as a conservative, conservatives must try to do so. Because Trump’s presidency has seen a series of major conservative victories. He has paved the way for a major victory in Janus v. AFSCME and for future defenses of constitutional rights that would have been shredded by a liberal SCOTUS majority. He has made possible the passage of a tax-reform bill and spearheaded a regulatory rollback that jump-started the economy. He oversaw the rout of ISIS, and he returned the U.S. to a pro-Israel, anti-Iran foreign policy in the Middle East.

Trump will no doubt continue to try the nation’s patience with his outrageous rhetoric going forward. But this week’s SCOTUS docket is a reminder of how much good his election has done, too.


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