Campaign Finance Reform Versus The First Amendment

The way you spend your money says something about you as a person. You make a statement every time you go to the grocery store and buy certain products, or go to the movie theater and choose to see one movie over another. Even if you ever say a word about the products you bought at the store, or give a review of the movie to friends and family, you speak through your purchases. Most people understand this.

The principle is the same when it comes to politics—if anything, it is even more accurate. It is possible to buy a product or spend money to see a movie once, just to see if you like it. But no one ever gives money to a politician or political cause simply to “see if they like it”. If I donate money to Ted Cruz’s reelection campaign, or to the Senate Conservatives Fund, or to Planned Parenthood for that matter, I am expressing my true beliefs in those particular causes. Hence the term, “putting your money where your mouth is.”

But that is exactly what most proposals for campaign finance reform seek to limit. By having individual spending limits, and byzantine restrictions on how private individuals can spend their own money on worthwhile political causes, the federal government is essentially restricting the constitutional guarantee to freedom of speech.

And yes, corporations are people too. What is a corporation, after all, but a group of people? American citizens do not suddenly lose their constitutional rights when they gather.

Obviously, political campaigns are a trillion-dollar industry. In any such industry, there must be at least a few general rules and regulations to protect the integrity of the process. But limiting individual contributions to $2,700 per federal campaign? $5,000 per year to a political action committee? Many people, myself included, would never dream of donating that much to any political cause. But that is not for the government to decide. If one is looking to ensure the strength of the First Amendment’s free speech clause, then targeting so-called campaign finance laws would seem a good place to start.

Thoughts on the New DNC Chair

Democrats on Saturday elected a new party chair, former Labor Secretary Tom Perez.

A lot was made of the battle for the chairmanship between Perez and Minnesota Rep. Keith Ellison as being crucial to the Democratic Party’s future, especially heading into a tough midterm election. Personally, I think Perez’s election will turn out to be less consequential than most people are saying. After all, how many people outside of politics really know, or care, who the DNC chair is? Or the chair of the RNC, for that matter?

There was also little in the way of substance to distinguish Perez and Ellison, as far as major policy issues. The basic differences came down to personality and how much the Democrats would oppose Trump: push for impeachment, or merely block legislation and nominees at almost every turn. In that respect, Perez was the moderate, although both are so far out of the American mainstream that the word really ceases to have any meaning.

Many Republicans, myself included, were hoping Ellison would be victorious due to his abrasive personality and scandal-filled personal life—including his past anti-Israel and anti-Semitic remarks, his affiliation with the Nation of Islam, and his flirtations with 9/11 trutherism. But Perez, in a show of party unity, quickly appointed Ellison as deputy chairman following his victory. The Democratic Party never fails to disappoint.

This election, by itself, will not swing any Congressional races in 2018. It will not make Donald Trump’s reelection in 2020 any more or less likely. But what it does do is show just out of touch and far out of the mainstream national Democrats continue to be. And that is the core challenge the party will have to face in the years ahead.

CPAC Speeches Have Become Symbols of Complacency

The big news going into this year’s annual CPAC conference was, as everyone who cares has now heard, the invitation to Milo Yiannopoulos to be a keynote speaker, the revocation of that invitation, and Yiannopoulos’ subsequent loss of his book deal and resignation as senior editor of Breitbart. I had no desire to discuss the drama while it was unfolding, and see no need to offer any exhaustive summary or commentary here.

But it is a symptom of a wider problem with CPAC in particular, and the conservative movement more generally. In recent years, as CPAC has become a bigger and more influential event, the focus has gradually begun to stray from promoting conservative values, and toward promoting the Republican Party in general. When Mitch McConnell and the rest of GOP Congressional leadership is regularly given a favorable platform, by virtue merely of their status in leadership, it is perhaps time for some self-examination. McConnell, and the rest of leadership, has done some good, conservative things. But in what universe is Mitch McConnell emblematic of steadfast conservative leadership?

In a similar vein, in several recent years gay Republican and gay conservative organizations (such as the Log Cabin Republicans and GOProud) were barred from CPAC entirely over their more libertarian attitudes toward homosexuality. But Milo Yiannopoulos, an extravagant celebrity who is openly gay and often talks about his affairs with other men, is offered a keynote speaking role. The invitation was only rescinded after not just videos surfaced of him endorsing what is essentially pedophilia, but after intense public backlash. In other words, it was the reaction to the videos that got the invite rescinded, more so than the actual content of the videos (which were already public). Yiannopoulos might make liberals mad, but he is no conservative and that fact by itself should not be enough to garner a prime speaking slot.

 The vast majority of the attendees understand all this. It’s among the crowds and on the floor of conventions like CPAC that you are most likely to find the most interesting array of differing, yet still conservative viewpoints, not with the (majority) pandering speeches and attention-seekers on the main stage.

Religious Liberty in the Twenty-First Century

Eighty-four percent of Americans identify as Christians of one form or another, but you wouldn’t know it from the coverage many Christians receive in the mainstream media, or the often scornful attitude toward traditional Christian beliefs expressed by the previous administration. Opponents of abortion are portrayed as against personal health and women’s choice. Opposition to gay marriage is painted as the spiritual successor to Jim Crow. Catholic nuns are told by the government that they must provide free contraceptive coverage to their employees or be punished. And in some liberal enclaves, local governments are even demanding copies of ministers’ sermons, in order to be analyzed for disagreeable content.

One of the greatest emerging issues the Supreme Court faces today is in the realm of religious liberty. In this area, recent history is mixed. On the one hand, the current Court has shown itself to be a friend of the First Amendment and freedom of expression, and took a dim view of arguments advanced by the Obama administration that elderly nuns should be forced to grant free access to contraceptives. At the same time, in Obergefell v. Hodges the Court sided with liberals in unilaterally declaring a national constitutional right to same-sex marriage, and opened the door to discrimination against a variety of religious groups who believed differently.

All this means that the appointment of judges committed to the full text and meaning of the First Amendment’s guarantee of religious freedom is of preeminent importance. Judge Gorsuch, fortunately, has a record when it comes to such issues. But the chances are high that Trump will get at least one more appointment to the Supreme Court in his first term, and it is vital that more judges like Gorsuch are appointed—no matter the identity of the judge or judges retiring.

I mentioned Christians specifically at the top of this post, because it is their beliefs most frequently under assault today. But the First Amendment applies equally to all beliefs and religions, and does not single any one out for special protection or prosecution. Muslims, Jews, and Sikhs deserve no fewer protections to practice their beliefs openly than do Christians—but no greater protections, either. The courts would do well to remember that fact.

Some Tuesday Wisdom from the Next Supreme Court Justice

National Review Online has just unearthed a 2005 article written for the publication by a lawyer based in Washington, D.C., one Neil Gorsuch. Go and read the whole thing now.

Obviously, the brief portion of the piece where he touches on electoral politics hasn’t aged especially well. Lines such as “Democrats have already failed to win a majority of the popular vote in nine out of the last ten presidential elections,” are more interesting as historical relics than anything else. And, of course, the era of gay marriage being an automatic loser at the ballot box is over, even with the Supreme Court refusing Gorsuch’s invitation and ruling that all such marriages must be recognized by every state.

But all that is beside the point. The article beautifully illustrates the point, as salient now as it was ten years ago, that liberals rely on the courts and extensive litigation at their, and the country’s peril. Judges should defend rights and strike down laws when appropriate, to be sure. That’s part of the job description. But, again I stress, only when appropriate. Which should not be the open invitation that many on the Left seem to think it is.

And though Gorsuch addresses the Left specifically, conservatives would do well to heed his words. Too often, many on the Right see the great successes Democrats have had at enacting their agenda through the courts (such as a national right to gay marriage and abortion) and push too far in the other direction, calling for example, for the Supreme Court to declare abortion to be unconstitutional across the board. There are right and wrong ways of achieving goals, and this would undoubtedly be a very bad position for pro-lifers to support. If the Supreme Court merely overturned Roe v. Wade and returned the matter to the states and voters to decide, there could then be a much more substantial debate over the ethics of abortion. But to forbid it outright, by court order, would merely repeat the original mistake of Roe by removing abortion from the arena of meaningful public debate.

Liberals, conservatives, and the courts would do well to heed Gorsuch’s words. And Gorsuch himself would do well to remember them.

Norma McCorvey, RIP

Norma McCorvey, better known as Jane Roe—the plaintiff in Roe v. Wade—died over the weekend.

As the obituary at the link notes, she was a complicated woman—accidental architect of one of the most consequential Supreme Court decisions of the past century, and eventually one of its fiercest opponents. In 2005, she petitioned the Supreme Court to overturn Roe, on the primary basis that she, the plaintiff in the original case, regretted her part in the decision. Obviously, the Court declined.

Many believed her conversion to be less about true conviction than an attempt to capitalize on fame. Obviously, no one can know what her true intentions actually were, why she eventually abandoned and took up rhetorical arms against the cause that still considers her to be something of a patron saint. But her actions following her joining of the pro-life cause seemed sincere, if ineffective as tactics. Those, in the end, are all we can judge. Perhaps she acted so rashly, in picketing judicial confirmation hearings, out of a sense of guilt for what she had helped wrought. Or perhaps she was simply seeking attention.

Finally, one cannot help but wonder what became of the child that McCorvey bore only months before the Roe decision was handed down. Her pregnancy with that child, her desire to terminate that pregnancy, was what led the Court to consider the constitutionality of state abortion restrictions in the first place. It seems safe to assume that McCorvey never had any further interaction with, or knowledge of, the child she gave up for adoption. That individual presumably has no knowledge of the complicated role they have played in American history.

McCorvey, of course, did know. She might not have a famous name, and her death will get little coverage in a media obsessed with Donald Trump. But her legacy continues to have a deep and consequential impact on American life.

RIP.

The Supreme Court and the Second Amendment

The Second Amendment is, without question, the most infamous and vilified section of the Constitution today. Ask ten random people on the street to name what is discussed in Article I, Section 8, or the 21^st Amendment, or the 10^th Amendment, and most will stare at you blankly. But ask about the Second Amendment, and the majority of those same ten will likely know: “right to bear arms.”

It is under assault today—this many conservatives know. What they may not understand are the ways in which this assault directly relates to the Supreme Court. Until the landmark rulings of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), there was no major Supreme Court ruling, in at least the past fifty years, which protected an individual’s right to bear arms. The Second Amendment was, in many legal circles, a dead letter, a law still technically on the books but no longer enforced or taken very seriously by anyone of consequence.

Then came the legal battles that eventually culminated in the Heller and Chicago decisions. Democrats were scandalized—but unlike other major decisions, from Roe v. Wade to Citizens United, they could not easily take a firm, united stand on the issue. The simple fact is that, whereas Americans are divided on abortion and suspicious of large corporations, they by and large love their guns. For hunting, for self-defense, for any other legal and ethical purpose for which Americans have been using guns for centuries. So Democratic opposition to the rulings had to be disguised, or at least toned down. Democratic Senators like Harry Reid needed to protect their favorable NRA ratings.

Under liberal pressure in the years since, that disguise has gradually been dropping. Hillary Clinton said in a debate last October that the she opposed the Heller decision because it made toddlers more likely to shoot themselves.

This was, obviously, nonsense. But it underscores how the gains of the last few years might be put at risk by the confirmation of just one additional liberal judge to the Supreme Court. Just as conservatives want to see Roe v. Wade overturned, so too do many liberals dream of the Heller and McDonald decisions also being overturned, and the Supreme Court declaring that the Second Amendment only applies to the National Guard and is a “collective”, rather than individual, right (their favorite kind).

And even without express challenges to Heller and McDonald, less ambitious liberals could still work through the courts to undercut the Second Amendment, piece by gradual piece. Both decisions allow that some gun control is constitutional, as long as those laws do not effectively deprive an entire class of people from exercising their constitutional rights. No Court decision has yet clearly defined what the constitutional limits on such laws truly are, beyond stating, as Heller and McDonald did, that an absolute ban on handguns is beyond the pale. That still leaves many unanswered questions, which liberals will seek to subvert for their own purposes.

The Fourth Branch of Government

Over two centuries ago, James Madison, writing in The Federalist No. 47, recognized the danger of an unchecked administrative state. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,” he wrote, “whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” And now, step by incremental step, the “fourth branch of government” is making Madison’s fears into reality, abetted by the other constitutional branches of government.

Administrative agencies (such as the IRS, EPA, SEC, and numerous other members of the “alphabet soup”) are nominally housed within the executive branch of government, delegated authority by the president to enforce the law within their respective fields. No clause of the Constitution allows for a delegation of authority to this degree, or addresses the fact that many federal agencies venture far outside their original jurisdictions in their prosecution of ordinary citizens.

The legislature, meanwhile, often leaves holes in the bills it passes, purposeful absences of detail that the administrative agencies often fill with rules and regulations of their own design. If this is not lawmaking or legislating, what is?

And the judiciary? It has willfully abandoned its duty to enforce the Constitution and the strict letter of the law, primarily by refusing to even interfere in the daily happenings in executive-branch agencies except in extreme circumstances. Often the courts, including the Supreme Court, merely decline to hear certain types of cases, other times, they actively defend the right of agencies to follow their own rules and hold their own hearings against those they have accused of violating federal regulations, without possibility of judicial appeal. The Supreme Court even ruled in the case of Chevron v. Natural Resources Defense Council (1984) that “courts should defer to agency interpretations of such statutes unless they are unreasonable.”

It takes little imagination to realize what James Madison and the other Founders would have made of that particular argument, or the entire sorry state of federal administrative law.

Congress should do more to fix this normalization of administrative tyranny, and indeed has been doing more. Current law provides Congress with the ability to repeal recent regulations, a power it has been exerting heavily as of late. The REINS Act, which would expressly forbid future major regulations unless first approved by Congress, has also been steadily progressing through the legislature. And it may be possible for the Chevron doctrine, as it is known, to be effectively repealed by law without need for further judicial intervention.

But the final way to halt and reverse the growth of the fourth branch of government will require the three constitutional branches to work together. The President must nominate, and the Senate must confirm, dedicated originalist judges who will be unapologetic in fighting “independent agencies” whenever such a case does arise. Railing against the administrative state is not sexy. It will put many voters to sleep, not rouse them to action. But in the long term, increasingly powerful and unaccountable agencies run by faceless bureaucrats are just as much of a threat to the Republic as the latest Trump “Muslim ban” or Supreme Court attempt to mandate legalized gay marriage.

Stare Decisis is Ridiculous

Imagine that you make a mistake, one you only find out about later. It could be anything—maybe you installed a new shelf sloppily, and only later noticed that it was tilted.  Or maybe your wife asks you to pick something up from the store, and it’s an hour before her words actually register. Do you act to fix your mistake, or do you decide to just live with an angry wife and useless shelf?

If you’re like most people, you act to fix the mistake, and the quicker the better (hopefully before the wife comes home and finds out that you never went to the store). But the Supreme Court’s often strict adherence to the principle of stare decisis—the power of binding precedent—is sometimes like seeing a mistake and willfully refusing to act to make it right. In the Court’s case, however, this refusal to act can over the long term actually hurt the constitutional foundations of the country.

This approach may be, as Justice Scalia once said in a different context, pure applesauce, but it is largely the way the Court has functioned for at least the past century. All courts are notoriously reluctant to overturn established precedent, but the Supreme Court has gained particular notoriety for its reluctance to overturn older decisions, even bad ones which a majority of justices are readily willing to admit are bad. It is one of a number of reasons the Court took more than fifty years to overturn the judicial endorsement of “separate but equal” facilities for blacks and whites (first articulated in the 1896 case of Plessy v. Ferguson, and not overturned until Brown v. Board of Education in 1954).

And if the justices do actually decide to overturn one of their prior rulings, every law student knows that they must be allowed to reach that conclusion on their own. Judges hate being told that they made a wrong decision, even if that fact is self-evident to everyone, including the judges themselves. The easiest way to win a case is to argue it within the framework of existing precedent, and allow the judge or judges in question to reach their own conclusions regarding precedent. Judges, and justices, hate being wrong, and they hate other people pointing out that they were wrong even more.

This is stupid. Nearly anyone with even minimal political engagement can think of some Supreme Court precedent that they believe should be overturned, and the arguments for some are more convincing than others (looking at you, Roe v. Wade). But beyond anyone’s ideological vendettas against certain cases, it’s just silly that the Supreme Court should be so resistant to overturning bad precedent, no matter the length of time elapsed. In fact, if that particular case has been on the books for a long period of time, and a wide range of people agree that it was a bad decision, even more reason for acting quickly, before it damages the country even more.

A rejection of the traditional judicial deference toward precedent is not lacking on the current Court—Justice Clarence Thomas has often argued for a less servile attitude toward past opinions. Hopefully more justices will join his more realistic attitude toward the Court’s work in the future, including Neil Gorsuch.

Donald J. Trump: Making Politics Fun Again

If there is one thing on which everyone should be able to agree, with respect to Donald Trump, it is that he has made people who have never before shown much interest in politics take more of an interest. We see this with both his supporters and opponents—supporters, particularly in the Midwest, who in many cases had never supported a Republican candidate, or even bothered to vote at all. And opponents, who may never have voted in an election or taken part in a political demonstration, until fear of Donald Trump motivated them to become more civically involved.

More broadly, Trump just makes following politics fun and exciting. Just look at his Twitter feed, or any of his campaign rallies, or news conferences. No one ever knows what exactly he’ll say next (possibly including Trump himself). For the many people who think of all politicians as exactly the same, and politics in general as either too boring or too depressing to follow closely, the excitement factor of Trump gives them a reason to pay closer attention.

Regardless of anyone’s opinions about Trump or his policies, stimulating more civic engagement like this among regular voters is undoubtedly a good thing for the country in general.

Trump's Next Immigration Steps

As you’ve probably heard by now, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled last night to uphold the decision of a district judge, keeping in place a temporary injunction against enforcing Trump’s immigration ban executive order. The full text of the circuit court’s opinion can be found here.

Amid all the celebrations from Trump opponents and rending of garments from Trump supporters, it bears repeating, once again, that this ruling was not on the merits. In other words, it was only a ruling on whether or not the immigration order could take effect while lawsuits were ongoing. The Trump administration, obviously, wanted the ban to be in place unless it was specifically found to be illegal or unconstitutional. Opponents wanted implementation to be halted until the issue of legality was settled.

As has already been reported, Trump faced four options: appealing to the Supreme Court for a stay of the district judge’s order; appealing for a rehearing by the full Ninth Circuit; return to district court, giving up on the appeal of the injunction and focusing on arguing the merits of the case; or redraft the executive order, addressing some of the legal concerns and rendering the decisions of both the district court judge and the circuit court moot. Trump’s tweet, sent immediately after the ruling was announced, implied that the government would seek to appeal; however, as I write this, word on the street is that the administration will redraft the executive order.

I had intended to discuss the circuit court’s opinion in depth—something I still may do at some later date. However, if the White House is truly about to revise and reissue the executive order, there’s not much hurry, because as I said, that would effectively invalidate the court opinions in question. If the executive order in question no longer existed, the entire legal process would have to start anew.

Presumably, any revised order would explicitly include exemptions for legal U.S. residents and green card holders, as well as more carefully avoiding even the appearance of a Muslim ban. Another lawsuit, no matter what the new order ultimately looks like, is inevitable; the team in the West Wing undoubtedly knows that. And the idea of a “Muslim Ban” is now too firmly rooted in the media and the public consciousness to prevent at least some negative public perception of the new order, whatever it ultimately looks like. But shoring up the administration’s legal weak points will also help the next round of legal defenses immeasurably.

At the same time, the new order can’t be too different; otherwise, Trump’s most ardent supporters will see him as caving on a key tenet of his campaign. The administration has to walk a fine line: draft an order more legally defensible than the last one, but just as pleasing to the president’s base.

If a revised order is in the offing, it will presumably come within the next few days. Then we can start this entire process all over again.

Roe v. Wade Is Both Evil and Stupid

In all of American history, has there ever been another Supreme Court decision as infamous as Roe v. Wade? The only possible contender that comes to mind is Dred Scott v. Sandford, the 1857 decision which held that African Americans were not U.S. citizens. But that case is obsolete now, overturned by civil war and constitutional amendment. No one holds marches over Dred Scott, because what would be the point?

And even among the universe of cases still considered to be valid precedent, not one can command the level of emotion, from both supporters and detractors, as Roe. Democrats persist in attempting to make overturning Citizens United a hot-button issue with the electorate, but few in the general electorate could even say what was decided in Citizens United (it held that certain campaign finance reforms passed by Congress violated the First Amendment’s guarantee of free speech). Likewise with Shelby County v. Holder (finding portions of the Voting Rights Act unconstitutional). And while conservatives were angered by the Court’s twin rulings on Obamacare, in NFIB v. Sebelius and King v. Burwell, the cases are hardly household names. There are no mass protests or marches on Washington on the anniversary of the rulings.

But Roe is different. It is the only Court decision still commemorated on the anniversary of its ruling, by supporters and opponents alike, more than forty years after the case was decided. Even among those who in general care nothing for politics, the name Roe v. Wade is well known. Supporters believe that without it, abortion would quickly be outlawed and criminalized altogether. Opponents often believe something similar, and therefore hope for its destruction.

The truth is a little less dramatic. A reversal of Roe would merely allow states wider latitude in regulating abortion. If some states wanted to ban it altogether, that would then be permissible. But if other states wanted to increase access to abortion, that too would be constitutional.

That being said, Roe v. Wade is undoubtedly an abomination, from both an ethical and legal perspective. It bars any state, even an imaginary state filled only with pro-life citizens, from regulating abortion in any significant way, let alone outlawing it. The mountain of scientific evidence now available to us, proving that fetuses are in fact living beings, is so overwhelming that a complete list is nearly impossible. At the moment of conception, fetuses have unique DNA. They have a beating heart at three weeks gestation, and unique fingerprints at ten weeks.

For perspective, many of the most aggressive Republican proposals to ban abortion altogether, which liberals fight tooth and nail, would forbid abortion after twenty weeks. Roe allows abortion right up through childbirth, or, on average, roughly forty weeks after conception.

And if that weren’t enough, the legal reasoning—or lack of it—in the Roe decision should make even pro-choice lawyers squirm. Again, an exhaustive list is beyond the scope of this post, although the full text of the majority opinion can be found here. But much of the opinion reads more like a speculative article in a medical journal than a governing ruling of the United States Supreme Court. Twice the author, Justice Harry Blackmun, bases his reasoning on a “right to privacy” he openly admits appears nowhere in the explicit text or history of the Constitution, but rather in “a certain guarantee of zones or areas of privacy” found, among other places, in “the penumbras of the Bill of Rights…” One doesn’t have to be a legal scholar to see that Blackmun was plainly grasping at straws, searching for every possible scrap of evidence that could support the result he had already decided he wanted to reach. Is it inventive? Sure. But the job of a Supreme Court Justice is not to be inventive with the law, in order to reach a predetermined outcome. The law should always determine the outcome.

Frustratingly, the Supreme Court came close to eradicating this blight on its history in 1992, with the case of Planned Parenthood v. Casey. A majority of justices seemed poised to overturn Roe, when one of them—one Anthony Kennedy—apparently got cold feet.

Here’s hoping Neil Gorsuch, once confirmed, will be able to keep his close friend Justice Kennedy grounded in the actual text of the law, rather than flitting around looking for desired outcomes. And hopefully, should Kennedy decide to retire within the next few years (as is the rumor), President Trump will appoint someone willing to correct the mistakes of both Kennedy in 1992, and the Court as a whole in 1972, by helping to end the stain that is Roe v. Wade for good.

Criticism For Trump Along With The Praise

Since taking office, President Trump has done much to earn praise from those who opposed him during the campaign. His executive orders have, for the most part, been those we would have expected from a truly conservative president, and his nomination of Neil Gorsuch to the Supreme Court was a fantastic pick.

And then Trump goes and says something as incredibly stupid and insulting as he did in the recent interview with Bill O’Reilly, when he equated America with Russia and said, in response to O’Reilly calling Putin a “killer”, “You think our country’s so innocent?”

Seriously? I mean, seriously? You’re really going to compare the United States of America, the modern birthplace of freedom of speech, press, and assembly, to Russia, led by a man who could well be a real, actual terrorist?

Ben Sasse, Republican Senator from Nebraska, had the perfect response.

Every thinking person knows very well what the GOP’s reaction would be had it been Barack Obama saying the exact same things Trump said in that interview. And it would be completely justified.

There have been many times over the past two weeks when I ask myself why I voted against Trump, particularly after his nomination of Judge Gorsuch. And then something like the O’Reilly interview happens, that makes me say, “Oh. That’s why.”

What's Next for the Gorsuch Nomination

At this point, I defy anyone to find a single conservative, or even a single Republican, who is not fully supportive of the idea of Neil Gorsuch sitting on the Supreme Court. His nomination may have largely divided Democrats and Republicans, but within the Republican Party it has been extraordinarily unifying, doing much to heal divisions still remaining after 2016.

That being said, even with a narrow Republican majority in the Senate, and as of this writing all GOP Senators supportive of the nominee, there’s no question that the confirmation battle will be rough, with Democrats testing Gorsuch far more than Republicans ever did with either of Obama’s Supreme Court nominees. Sonia Sotomayor was confirmed 68-31, and her confirmation process took a little over two months. Elena Kagan was confirmed the next year by a vote of 63-37, roughly three months after being nominated. My sense right now is that Gorsuch will be confirmed with between 56 and 58 votes, including between four and six Democrats in favor, though every single Democratic “aye” vote will be a hard-fought victory.

Chuck Grassley, the chairman of the Senate Judiciary Committee, has said that he would like to see Gorsuch confirmed by Easter, giving the Senate a six-week timeframe to complete hearings, receive papers and questionnaires, and hold votes. This would be significantly faster than previous nominees and I don’t think they will ultimately make the cutoff, but it is a good benchmark to shoot for.

There is also a reason for increased speed this time. Whereas the last two vacancies occurred during summer recess, while the Court was out of session, they are now beginning to hear cases for the spring term. The faster Gorsuch can be confirmed, the faster he can begin deciding cases, which both gives Republicans extra incentive to speed the process, and Democrats extra reason to slow down the nomination, even if they are ultimately unsuccessful at derailing it altogether.

Hearings have not yet been scheduled, although if Grassley hopes to meet his self-imposed Easter deadline they will have to begin within the next couple weeks. In the runup to those hearings, I’ll be taking a closer look at some of the judicial issues likely to face Gorsuch, both as questions during confirmation and in real-life cases once he is ultimately confirmed. Some of these issues, such as Roe v. Wade and religious freedom, are fairly well-known, while others, like the judicial principle of stare decisis, are more obscure, but all could ultimately have a significant impact on the future of the country.

Get Rid of the Filibuster for Supreme Court Nominees

The Senate filibuster, which for decades required that any major action first garner sixty votes, had long served to protect the rights of the minority from an overbearing majority. But in 2013, impatient at having Senate Republicans block some of then-President Obama’s more extreme judicial nominees, Democrats led by Harry Reid changed the rules. Most legislation and Supreme Court appointments would still require sixty votes, but Cabinet and lower-court nominees would now only require fifty-one votes.

In 2015, after regaining the majority, Republicans decided to keep the new rules in place, with an eye toward easing the confirmation process for the nominees of a new Republican president. And in 2016, when a Hillary Clinton victory looked almost assured, Democrats talked openly of further changing Senate rules and doing away with the filibuster for Supreme Court appointments.

It is likely that at least a few moderate Democrats, up for reelection next year in red states, will ultimately vote to confirm Neil Gorsuch to the Supreme Court, or at least vote to overcome a filibuster. But whether Gorsuch can reach sixty votes is another question. And if he cannot, the filibuster for Supreme Court nominees must be ended, to allow him to be confirmed anyway.

The filibuster was once a valuable tool, no matter the party in opposition. But it was seriously weakened by the Democrats in 2013, and its time (at least for Court nominations) may finally have come. If the choice is between keeping the filibuster and confirming a principled constitutionalist to the Supreme Court, I say the Senate must do everything possible to put Gorsuch on the Court.

And The Next Supreme Court Justice Is...

By now nearly everyone who cares about such things has heard: Judge Neil Gorsuch, of the Tenth Circuit Court of Appeals, isTrump’s nominee for the Supreme Court seat vacated by the death of Antonin Scalia last year.

I won’t bother recapping Judge Gorsuch’s distinguished career yet again; several good introductions have already been written, especially here and here. Suffice it to say that, if confirmed, he would be a stellar justice and a worthy successor to Scalia. He has enough of a judicial and legal record that it is nearly impossible to imagine he could become another Souter or Kennedy once on the bench.

I will say this: Had I known for a fact, before the election, that Trump would actually nominate such a principled individual to the Supreme Court, that fact alone would have made me at least rethink voting against him. Yes, Trump promised to nominate someone from a publicly released list, and yes, Gorsuch was on that list. But there was little reason, based on Trump’s history, to believe his campaign promises. It now seems that on the Supreme Court, as on several other topics, Trump meant what he said.

Gorsuch is a fantastic choice for the Supreme Court, a choice worthy of a President Ted Cruz. He deserves every conservative’s and every Republican’s full support. And, on this at least, Trump deserves our thanks.