The Corner

Law & the Courts

So Much for the ‘Litmus Test’

A man holding a phone walks past a TikTok sign, at the International Artificial Products Expo in Hangzhou, Zhejiang province, China, October 18, 2019. (Stringer/Reuters)

I’ll have a column a bit later on the weakness, coming out of the gate, of the Democratic attack on Judge Amy Coney Barrett. Among the lamest aspects is the claim that President Trump has a “litmus test” for judicial nominees. It’s not entirely clear what this “litmus test” supposedly entails other than a commitment to dismantle Obamacare (because of the fortuity for Democrats that a big Affordable Care Act case is about to be argued before the Supreme Court, as I’ll further explain in the column) and, of course, reverse Roe v. Wade (because, though they’re “progressives,” the Dem playbook doesn’t change much).

It is nonsense, of course. There is no litmus test. There are Democrats chanting “litmus test” as if it were a mantra.

I mention this because it was striking this morning to find that a Trump appointee had ruled against the Trump administration in the TikTok case. Judge Carl Nichols of the federal district court in Washington, D.C., granted a preliminary injunction which, for now, stops the president from prohibiting downloads on the video-sharing app. The government believes TikTok serves as an intelligence-gathering arm of the Communist Chinese regime. Judge Nichols says the administration has made its case that China is a serious threat (see Jimmy Quinn’s post from yesterday), but nevertheless finds that the ban oversteps the president’s authority under the International Emergency Economic Powers Act.

We’ll have to see what unfolds in the case. For present purposes, though, one would assume that, in preparation for Judge Barrett’s Supreme Court confirmation hearing in a couple of weeks, Senate Judiciary Committee Republicans and the White House Counsel’s Office are collecting instances of Trump-appointed judges who have ruled against Trump administration positions.

There are a number of such examples. In just the last rush or decisions at the end of the Supreme Court’s term, for example, Justices Kavanaugh and Gorsuch ruled against the president’s extravagant claims of immunity from investigation in two cases. Justice Gorsuch notoriously ruled against the Trump Justice Department’s position in Bostock, the Title VII discrimination case, and took another walk on the wild side in holding that a sizable chunk of Oklahoma is actually “Indian country” for jurisdictional purposes. Justice Kavanaugh authored an opinion about (among other things) severability that the Court will likely rely on in eventually ruling against the Trump administration in the Obamacare case. (The severability doctrine holds that a constitutionally invalid provision in a broad statutory scheme can be surgically excised without invalidating the entire scheme).

President Trump is a nonlawyer who is neither versed nor much interested in litigation strategies. Moreover, the signal achievement of his presidency may be stocking the federal bench with originalist lawyers who maintain that a judge’s job is to interpret the law as it was enacted or ratified, not impose policy outcomes. The president would have a hard time formulating a litmus test, and imposing one would undermine one of the best arguments for his reelection.

In any event, it was not surprising to learn that it was a Trump judge who sided with TikTok, a business claiming irreparable harm, against the Trump administration’s sweeping claim of national-security power.

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