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.