Why Can't Trump Treat The Rest of His Presidency Like His Judicial Nominations?

Amid all the turmoil surrounding the Trump White House, there has been one area in which the president has consistently delivered: making solid judicial nominations. The confirmation of Neil Gorsuch to the Supreme Court remains the highlight of Trump’s presidency so far, and Trump has recently begun nominating candidates to fill the numerous vacancies on federal circuit courts around the country, as well. All the nominations have so far proceeded with a minimum of fuss and no major missteps.

The reason is simple. Trump, for whatever reason, has never really seemed to care much about judicial nominations (even though the task is one of the greatest legacies any president will leave), and so far has largely left the process of selecting nominees, and promoting those nominees, to his advisers. In the realm of judicial vacancies, he seems poised to remain a remarkably hands-off president.

What this proves is that when Trump listens to his advisers, avoids inflammatory public statements (or really any public statements at all), and otherwise takes a hands-off approach, his agenda has a much greater chance of success. When, on the other hand, he becomes involved, ignores counsel, and sends early-morning tweets about any given subject, his agenda in that area is far more likely to derail.

If Trump could just take his model of the presidency as it pertained to judicial nominations, and expand it to other issues, he might begin to see a much greater rate of success.

Who Should Be Trump's Next Supreme Court Nominee?

Yesterday I offered some speculation about future vacancies on the Supreme Court, and the way Trump’s nominations to fill those vacancies could impact the ideological balance of the Court. Today, I wanted to briefly discuss the specific kind of person Trump should name to the Court.

The obvious example for Trump to follow in choosing a future nominee is now-Justice Neil Gorsuch. The Gorsuch nomination was universally well-received by the Right on its announcement, and Gorsuch satisfied all three of the criteria vital to a successful Trump Supreme Court pick—ideology, age, and placement on the Trump campaign’s list of possible nominees. A potential second pick should fit those three criteria just as well.

The most important qualification will obviously be that of judicial philosophy, and the vetting process should actively seek out every available piece of evidence to determine how each potential nominee feels about past major cases, as well as issues such as federalism, separation of powers, and an expansive versus originalist view of the Constitution. This attention to detail is particularly important in light of the recent history of Republican judicial nominees, and their varying degrees of adherence to the original meaning and text of the Constitution. For every Clarence Thomas, Samuel Alito, and Neil Gorsuch nominated to the Court, there has been an Anthony Kennedy, David Souter, or John Roberts.

The age factor is perhaps the most underappreciated of the many that go into determining who the next Supreme Court justice might be, but it is also one of the most important, and Trump should nominate someone who is in their 50's or even 40's, and could be expected to serve on the Court for many years to come. Again, Gorsuch should be the model here—at 49, he is by far the youngest Justice currently on the Court, and absent any unforeseen circumstances should still be capable of deciding cases twenty or even thirty years from now.

Finally, Trump should choose a nominee from the list of possible Supreme Court appointments he released during the campaign. That list provided a guarantee that the nominee would be a reliable conservative, and was a key campaign promise. Though it was understood at the time to primarily apply to the vacancy created by the death of Antonin Scalia, Trump also said that he would use the list to choose future nominees as well, should further vacancies arise during his time in office.  The list is replete with individuals who would make fantastic Supreme Court justices, and it would be a mistake for Trump to begin the process of selecting a second nominee by looking anywhere else.

Gaming Out The Future of Supreme Court Vacancies

Since Ronald Reagan, every President of the United States has seen at least two successful nominations to the Supreme Court. Reagan had three; both Bushes, Bill Clinton, and Barack Obama have each filled two vacancies. Donald Trump, only one hundred days into his first term in office, has already had one successful nomination, the only time in recent history that has occurred.

And Trump could soon get another chance to leave his mark on the Supreme Court. Rumors are swirling that Anthony Kennedy, the moderate swing vote on the Court and eighty years old, could retire this summer. If he does, and Trump has the opportunity to make a second nomination, it will be an historic event for a president to fill two seats on the Court so early in his term.

As I’ve said before, this is when the real battle for the future of the Supreme Court will take place. Gorsuch’s nomination merely replaced one conservative—Antonin Scalia—with another. But if Trump replaces Kennedy with another name from his list of potential justices, any of whom would be a solid conservative pick, the current balance of power would shift definitively toward the Right.

And it might not end there. Ruth Bader Ginsburg, the leader of the current Court’s liberal wing, is 84 years old and has suffered several health issues in recent years, including cancer. She would certainly like to delay retirement until the next liberal president is elected, whether in four or eight years, but if any justice is likely to be forced into retirement due to worsening health problems, it would be her. Stephen Breyer, another veteran liberal, is currently 78 years old, and may well decide to leave the Court before another Democrat is elected, particularly was Trump to win reelection in 2020.

In contrast, with Scalia’s death, Clarence Thomas is now the oldest conservative member of the Court, who at 68 is still fairly young by judicial standards.

With his first Supreme Court nomination, Trump has all but guaranteed the current delicate balance of power between conservatives and liberals. With his next pick, should Kennedy indeed choose retire within the next year or two, Trump has the opportunity to give the Court its first fully conservative majority since the early 1930’s. And, should more vacancies arise after that, he could well solidify a conservative supermajority on the Court that would last for decades to come.

How Much Will Neil Gorsuch Really Change The Supreme Court?

From a conservative point of view, the nomination of Neil Gorsuch to the Supreme Court was a huge deal, because of both his solid originalist record on the 10^th Circuit bench and the seat on the high court that he was destined to fill. For conservatives to preserve the center-right status quo that has more or less endured on the Court since the early 1990’s, it was vital that someone at least as committed to the Constitution as Antonin Scalia be nominated and confirmed to the vacancy.

But for liberals, the stakes were much lower—despite the fact that Democratic senators were howling left and right that if Gorsuch was confirmed, it would mean the end of the republic as we know it. Liberals have survived the past two decades with a Court nearly identical, ideologically, to the one that will soon take shape, once Gorsuch begins hearing cases. They’ve even gotten a few wins—the survival of Obamacare, the nationwide legalization of gay marriage—out of the equation.

Which is why I continue to struggle to understand why Chuck Schumer and the rest of the Democratic caucus in the Senate felt it was worth sacrificing the filibuster for high court nominees in a fruitless effort to prevent Gorsuch’s elevation. Why make the replacement of one conservative justice with another the hill to die on, rather than waiting and saving ammunition for the next vacancy, when Democrats could well be confronted with the idea of Donald Trump replacing an outspoken liberal with a conservative?

Others, many others, have asked the same question since the announcement of Gorsuch’s nomination. The likeliest answer seems to be that the Democratic base was exerting so much pressure on members of Congress to oppose Trump and his nominees at every step, that Democrats were cowed into doing what in their hearts they knew was strategically stupid. Sure, if Democrats had saved their fire until Trump’s next Court pick, the same end result would probably have occurred—the filibuster would have been gutted, and the nominee would have been confirmed. But in that case, liberals would have had more public credibility from keeping their opposition to Gorsuch low-key, and their hysterical opposition would have been more believable—translating to greater public support, as opposed to now, when that opposition is easier to see as more of a reflexive rejection to anything Trump-related, no matter the circumstances.

Gorsuch and Scalia are different people, no doubt about it. There is evidence to suggest that on some issues, Gorsuch may actually be a little to the right of Scalia. And the former’s relative youth ensures that, absent sudden circumstance, he could well be deciding cases for decades to come. But overall, Democrats’ decision to go all-in on opposition to Gorsuch, rather than saving ammunition for later, was pretty shortsighted of them.

NEW: Gorsuch Is Confirmed

Moments ago, the Senate officially confirmed Judge Neil Gorsuch to be the newest Associate Justice of the U.S. Supreme Court.

Thank God. Thank God that this process is finally over; it was actually a rather quick confirmation, from the first nomination announcement to final Senate vote, but with all the bitter partisan struggles it felt like forever. I was getting tired of reading and writing about it, day after day, to be honest. But the process is finally over.

And thank God that Neil Gorsuch, not Merrick Garland or whomever Hillary Clinton would have nominated, is the one about to fill Antonin Scalia’s seat. Justice Scalia was a giant of constitutional law, and was a major force in returning the Supreme Court to a limited government, originalist jurisprudence. Not many people could be expected to fill those shoes. Now-Associate Justice Gorsuch is one of the very few who can.

Congratulations, Justice Gorsuch. Now don’t let us down.

Today Is A Big Day

Minutes ago, the Senate vote on cloture for the nomination of Neil Gorsuch to the Supreme Court fell short of the sixty votes necessary to proceed to a final vote. This means that Democrats have no launched the first successful filibuster of a Supreme Court nominee in fifty years, and the first ever solely along party lines.

As I wrote yesterday, over the past week it became increasingly clear that this was going to happen. Which means that it is, as they say, time to go nuclear. One way or another, Mitch McConnell has to make sure that Gorsuch is confirmed. It is something necessary for the future of the country, the Constitution, and, needless to say, failing to ensure confirmation would be equivalent to McConnell signing his own political death warrant.

Many Republicans have expressed dismay over using the nuclear option. I sympathize. It is not an ideal situation, and it should not have come to this. The filibuster is a valuable tool for the minority party, and the GOP still remembers what it was like to be in the Senate minority. It is a certainty that at some point, they will return to that position, and when that day comes they will wish for a tool like the filibuster. But the confirmation of Neil Gorsuch is too important to leave any option, even the nuclear option, on the table.

The actions taken today will shape the future of the Senate as a deliberative body, and the composition of the Supreme Court for decades to come.

Time To Go Nuclear

Democrats now look likely to attempt a filibuster of Neil Gorsuch’s nomination to the Supreme Court. Based on public statements, at least forty-one Democratic senators now say they will vote against the cloture motion, which would allow for a final vote.

I have to say, I’m surprised. Gorsuch won confirmation to the Tenth Circuit unanimously only a decade ago. Many of the Democrats now decrying him as a dangerous and unqualified ideologue were already serving in the Senate then, including Minority Leader Chuck Schumer. It was to be expected that Gorsuch’s nomination to the Supreme Court would be far from unanimous, but I didn’t expect that quite so many Democrats would be so eager to be seen as partisan hacks.

But either way, Democrats have made their choice, and now they must deal with the consequences. Neil Gorsuch is an eminently qualified judge who will make a superb justice. Eliminating the filibuster is not the ideal solution, but it seems to be the only one left.  Apparently, the current Democratic caucus will only accept a judge who has first sworn allegiance to Planned Parenthood and taken an oath vowing to uphold Roe v. Wade at any cost. Anyone else is “outside the mainstream”.

Republicans may well one day regret eliminating the filibuster for Supreme Court nominees. But putting Neil Gorsuch on the Supreme Court is a worthy enough reward. Time to go nuclear.

Democrats Need To Confirm Neil Gorsuch

As of this writing, just two Senate Democrats—Joe Manchin of West Virginia and Heidi Heitkamp of South Dakota—have said that they will vote to confirm Neil Gorsuch to the Supreme Court. Over thirty other members of the caucus, including the Minority Leader, have indicated their opposition to Gorsuch, and the remainder (about a dozen) remain uncommitted, at least publicly.

For comparison’s sake, five Republicans ultimately voted to confirm Elena Kagan, the most recent Democratic nominee to the Supreme Court, in 2010. The previous year, nine Republicans voted to confirm Sonia Sotomayor. As both votes occurred when Democrats still held close to sixty seats in the Senate, neither nomination was ever in any serious jeopardy.

The days when strongly conservative or liberal nominees to the Supreme Court, such as Antonin Scalia or Ruth Bader Ginsburg, could be confirmed with near unanimity are clearly over. But the fact remains that there is an empty seat on the Supreme Court which must be filled, and Democrats are not likely to see a more qualified, respected, or thoughtful judge than Neil Gorsuch be nominated to fill the vacancy. The Democratic caucus, egged on by liberal activists, is obviously betting that a general policy of resistance will have a big payoff in 2018.

The reason Republicans blocked Merrick Garland’s nomination last year was simple: it was a presidential election year, and whoever won the election should get the opportunity to fill the vacancy. It was an idea built over decades of Senate tradition, by Republicans and Democrats alike. Do those Democrats now blocking Gorsuch, who last year argued so strenuously that there could be no vacancies on the Court, now want Scalia’s seat left vacant until 2020?

Neil Gorsuch is an outstanding nominee, highly qualified, has no skeletons in his closet, and has proven through both his testimony and written opinions that he serves the law and the Constitution, at the expense of any personal agenda. Democrats can ask for no better from any nominee to the Supreme Court, much less a Republican nominee.

Summarizing The Gorsuch Confirmation Hearings

In a word: Excellent. Or, in four: future Associate Justice Neil Gorsuch.

Gorsuch, as expected, did just about everything right during his confirmation hearings this past week, skillfully parrying the expected Democratic attacks on issues such as campaign finance and abortion (you can read my take on the abortion-related exchanges here). He was always a favorite to be confirmed, absent some shocking gaffe at his confirmation hearings, and with the hearings now past even that remote possibility is dead.

Chuck Schumer and the more liberal members of the Democratic caucus may make noises about filibustering the nomination, thereby requiring sixty votes to confirm, but I wouldn’t be surprised if they lack the votes within the caucus even to sustain a filibuster. There are probably at least 6-8 Democrats, up for reelection next year in vulnerable seats, who would consider voting to confirm—or at least voting to end any potential filibuster. And no Republicans are likely to oppose Gorsuch, either.

All that said, Neil Gorsuch will be on the Supreme Court by June at the latest, and could be confirmed by Easter, providing a big win to both conservatives and the Trump administration.

Don't Be Worried About Gorsuch's Abortion Comments

Abortion has been a hot topic so far in Judge Gorsuch’s confirmation hearing, resulting in several memorable exchanges between the (hopefully) future justice and Judiciary Committee Democrats.

Dianne Feinstein has been the senator most focused on the abortion issue, questioning whether Gorsuch would consider overturning Roe v. Wade, to which Gorsuch replied that he could make no guarantees on how he’d rule in any future case, but that “Once a case is settled, that adds to the determinacy of the law. What was once a hotly-contested issue is no longer a hotly-contested issue. We move forward.”

“[Roe] has been reaffirmed many times, I can say that,” he said later. He also said that if President Trump had asked him to overturn Roe, “I would have walked out the door.”

Some conservatives might be concerned by this, unhappy with any response that doesn’t amount to, “I will definitely push for the abolition of Roe the moment I am confirmed.” But this would be pretty stupid from a political standpoint, and also, as Gorsuch and others (including the late Justice Scalia) have said, not an attribute one should look for in a good judge. Judges should always wait until hearing the facts of a case before making any final decision.

I was also curious what Samuel Alito, an unquestionably fine conservative justice, had to say on abortion during his own confirmation hearing a decade ago: “What I have said about Roe is that if it were -- if the issue were to come before me, if I’m confirmed and I’m on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important. If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.”

And: “Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it’s been on the books for a long time. It has been challenged on a number of occasions. The Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes—in Casey—based on stare decisis.”

Those responses are, substantively, little different from what Gorsuch has offered on the same issue over the last couple days. Of course, no one can predict with 100% accuracy how any given judicial nominee will rule once on the bench—see Souter, David, and Roberts, John. Confirmation hearings have become more about partisan maneuverings and avoiding verbal traps laid by the opposing side than a window into judicial thought. But Gorsuch’s statements over the last few days, on abortion and other issues, is fully in line with those of past conservative nominees.

The Gorsuch Confirmation Hearings Begin Today

Today, a month after being nominated to the Supreme Court, Judge Neil Gorsuch will finally have his first day of testimony before the Senate Judiciary Committee.

This week will be brutal for Gorsuch; I don’t envy him the process. The hearings will be the highlight of the confirmation process, the moment when he will have the greatest ability to answer questions about his legal philosophy and prospective future tenure on the Court. And Democrats will also have the greatest opportunity to find, in a public setting, the slightest hint of scandal or trumped-up excuse to block his confirmation. In the end, it is a near certainty that Gorsuch will be confirmed. But look for the committee’s most liberal members to hound him every step of the way.

Many of the committee Democrats will almost certainly ask whether Gorsuch intends to vote to overturn Roe v. Wade, in an attempt to sink him with that oldest of liberal totems. Gorsuch will likely say, repeatedly, that he will judge each case before him on the merits of that case alone. Democrats will not be amused, looking for a simple “yes” or “no”. Expect a similar back-and-forth with regard to Citizens United, and the gun control cases of the late 2000’s.

Gorsuch is a conservative and an originalist; there can be no doubt of that from his past legal opinions and other writings. But he is also charming, talented, and eminently qualified for the position to which he has been nominated. It will be a tough week, but soon enough—possibly within a month’s time—Neil Gorsuch will be the newest member of the Supreme Court, confirmed on a bipartisan vote.

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.

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.

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.

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.