I defer to no one in being repulsed by the senselessly cruel incompetence and national-security theater that was our president’s executive order on immigration. It’s more than troubling to think that Steve Bannon, seemingly without much assistance from John Kelly or Jim Mattis, is determining real policy.
Having said that, I have to praise the president for a highly competent appointment to the Court.
Neil Gorsuch is an erudite gentleman trained in both law and philosophy. He’s very young by High Court standards and seemingly exceptionally fit. If confirmed, he’s likely to be on the bench for several decades.
Now our friend Ilya Somin, a libertarian originalist, is concerned about his views concerning judicial review. He’s not about reversing key New Deal precedents, and he’s not likely to be aggressive in striking down ordinary state and local law as presumptive violations of “liberty” or individual rights. Judicial review is meant to be an extraordinary remedy in our democracy.
Those, such as Somin or Randy Barnett or George Will, looking for lots more “judicial engagement” on the economic/regulatory front are likely to be disappointed by Gorsuch’s restraint. And in many areas his thought is that the courts should do less — and legislatures do more — in shaping the future of our country.
Gorsuch is, however, still quite a civil libertarian, and he’s likely not to shy away from striking down executive orders that are too rogue. Democrats, it’s been said, should regard him as a gift from Trump for checking the inevitable excesses of Trumpism.
He has been aggressive in protecting religious liberty from an overreaching an administration and administrators.
Gorsuch, all factors considered, was the candidate most like Scalia. Lots of conservatives would have preferred a Thomas. But, you know, Trump promised us a Scalia. Rarely has a campaign promise been kept more exactly.
If Gorsuch is an even better version of Scalia than Scalia himself, it’s because he’s unassuming enough to avoid Antonin’s rhetorical self-indulgence, which sometimes diverted attention from the real issues.
The Trump voters especially concerned about the Court were mostly animated by religion and religious liberty. They aren’t libertarians, and they certainly don’t think that our basic entitlements and unions are unconstitutional.
Democrats have good reasons, they think, for opposing this nomination. But they can’t be directed against Trump in particular, only against Republicans in general. And given that Gorsuch doesn’t inspire character or fitness objections, Americans are free to disagree as reasonable men and women about what the Constitution means in particular cases.
In general, we’d be making progress if we were moving away from both government by judiciary and government by executive order.